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Re: Attorney papers and confidentiality



This subject has come up before on the list many times.  If you take a
look at the Archives archives, you should be able to find those old posts.
Lawyers' papers and the confidentiality issues surrounding them have also
been the topic of regional and national conference panels, and have been
discussed by SAA's Privacy and Confidentiality Roundtable.

The matter is not simple, and there is not at all a clear consensus that
attorney-client confidentiality is perpetual.  Many lawyers and their
estates have chosen to make their papers available for research, often
under strict time and usage restrictions.  In consultation with
representatives of such groups as the American Bar Foundation, the
American Society for Legal History, and leading legal ethicists, I helped
develop guidelines that have been implemented at various institutions to
deal with such papers.  I had hoped to publish those guidelines by now,
but, unfortunately, other projects (and the fact that I am no longer a
practicing archivist) have gotten in the way.

If anyone is interested in discussing those guidelines, they can contact
me off-list.

Yours,

Akiba J. Covitz, Ph.D.
Lecturer & Senior Research Associate
Yale Law School
(formerly, Archivist, Manuscripts & Archives,
Yale University)
akiba.covitz@yale.edu


On Fri, 28 Apr 2000, Mark Lambert wrote:

> Doug: I agree with Jennifer in that attorney-client confidentiality is
> for perpetuity, unlike the right to privacy, which I believe dies with
> the person.  This topic is also of interest to me, and I have been
> reading on this lately.  A couple articles I have found on point or
> close to it are:
>
> Hobbs, Bonnie.  "Note: Lawyers' Papers: Confidentiality Versus the
> Claims of History." Washington and Lee Law Review, Vol. 49, No. 1,
> Winter 1992.
>
> Ciepluch, Tyson A.  "Overriding The Posthumous Application of the
> Attorney-Client Privilege: Due Process for A Criminal Defendent."
> Marquette Law Review, Vol. 83, No. 4, Summer 2000.
>
> Mark
>
> Mark Lambert
> Special Collections and Government Documents Librarian
> South Texas College of Law Library
> Houston, TX
>
> Jennifer Rallo wrote:
>
> > Doug,
> >
> >         The general thought on attorney-client privilege is that it legally lasts
> > into perpetuity, even after the clients death.  This is done to ensure
> > that clients will have no fear of speaking to their attorney with candor-a
> > vital requirement for effective representation.  Attorney-client privilege
> > can be waived in some cases where it can be shown that releasing the
> > materials would greatly advance further historical research-but this is
> > done very infrequently.  (For example, Lizzie Borden's attorney's notes
> > have remained sealed-despite attempts to have them opened for purposes of
> > historical research).  If you contact the American Bar Association they
> > should be able to provide you with information on how to treat these
> > papers.  The ABA Model Rule of Professional Conduct 1.6 deals with
> > attorney-client privilege.  But the binding law would be the legislated
> > laws of your state-which are usually slightly modified versions of the ABA
> > Model Rules.  There also may be some case law in your state which would
> > reveal how the courts have interpreted those laws-both state courts and
> > Federal Courts interpreting state law would apply.  Pennsylvania is part
> > of the third circuit.
> >
> >         I hope this helps.
> >
> > Jennifer Allain Rallo
> > Assistant Archivist
> > The Johns Hopkins University Archives
> > (410) 516-4259
> > rallo@jhu.edu
> >
> > On Fri, 28 Apr 2000, MacGregor, Douglas J. wrote:
> >
> > > I would appreciate any help or advice on handling access to papers of cases
> > > of attorneys.  I am currently processing the papers of a local (Pittsburgh,
> > > PA) judge who was an attorney before taking a position on the  bench.  The
> > > papers include about two hundred cases ranging from personal injury to
> > > defending communists and date between 1924-1937.  I was wondering if anyone
> > > could direct me to sources regarding the confidentiality of the case
> > > material between client and attorney and if this material is confidential,
> > > how long does it maintain this status?  Any suggestions or how other
> > > institutions handled similar situations will be appreciated.
> > >
> > > Doug MacGregor
> > > Assistant Archivist
> > > Historical Society of Western Pennsylvania
> > > djmacgregor@hswp.org
> > >
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