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Re: Collections Restrictions



Disclaimer:  I ain't no lawyer & my opinions are my own; I write from my
limited understand and memory, etc.

Unfortunately, attorney-client privilege and attorney work product issues
do impact the archivist.  I have run into this numerous times, since the
Tobacco Control Archives was founded with papers which were claimed to be
covered by those legal precepts, and there are still litigation papers I
cannot get because they are included under that umbrella.  Not only can I
not acquire such papers, I cannot even survey them because the attorney's
office would have to have an employee *look at them first* to determine
which are privileged.

Attorney-client privilege and "attorney work product" refer to all papers
for which the claim is made by either attorney or client.  Such papers must
be sealed unless privilege is waived *by the client*, a court decides that
a crime-fraud exception applies (a rare finding, but it applies in the case
of the Brown & Williamson papers I curate), or there is a court order for
their release.  To be on the safe side, all correspondence, notes or other
documents generated by either attorneys or their clients should be treated
as covered by attorney-client privilege, with the sole exception of public
documents (documents filed with courts in specific cases).  Such things as
open letters, public statements, press coverage or other documents created
with the anticipation of public access would of course be excepted.  The
death of the client does not impact attorney-client privilege.  As I
understand it, the law is still murky there.  (Can heirs revoke the
privilege?  Maybe--but they could still get sued by another heir or person
mentioned in the papers, as I understand it.)

Since I worked for a law firm (Pillsbury-Winthrop) as archivist for a time,
I believe that law firms treat all their files (except public documents) as
permanently sealed--because attorney-client privilege *never expires*.

Unless you can obtain permission from the client to make non-court
documents accessible, it is my understanding that you are bound by law and
precedent to permanently seal all attorney-client communication.  Otherwise
you are subject to lawsuit.  Since most archives have a policy against
permanently sealing any papers, such documents are not even suitable for
acquisition.

I think the best option is, as recommended by Mr. Lambert, to consult an
attorney before moving in the direction of accepting or making any
collection with attorney-client papers accessible in any way.  (Even the
archivist shouldn't look at such papers, since all privileged communication
is eyes only except where the client allows another to see it, and in the
case of employees of the same law firm or their successors.)  In other
words, you can get in trouble just for looking at some of the stuff.

Arel
Arel Lucas
Tobacco Control Archives
Library and Center for Knowledge Management
University of California San Francisco
http://www.library.ucsf.edu/tobacco/
--------------------------
At 10:07 AM 2/5/2002 -0600, Mark Lambert wrote:
Laura:
This is a tough subject.  I am not a lawyer, but have been studying this
topic in depth over the last two years.  Some relevant points:

Attorney-Client Confidentiality: Has no bearing on you as an archivist.
It only is between the lawyer and the client, and deals with when, why,
and how the lawyer would be disciplined by the ABA.

Privacy and Ethics are your concerns.  The best, but hardest thing to do
is only open the files concerning persons you have contacted, and give
you authorization to do so (waived their rights to confidentiality).
You could also open each file when you verify that the everyone
concerned in each file is deceased.  Also very hard.  The most prudent
thing to do is to close each file for a specific amount of years
depending on when the legal matter was closed, e.g. 5 years, 10 years,
25 years, 50 years.

All this should be done in consultation with your own institution's
attorney, or after long talks between you and your administration.

Some relevant articles on the subject are:

Akiba Covitz, "Providing Access to Lawyer's Papers: The Perils, and the
Rewards," Legal Reference Services Quarterly, vol. 20 (2001): 151-179.

Kermit L. Hall, "Historians and Acces to the Files of Lawyers," OAH
Newsletter, May 1994: 7-8.

Bonnie Hobbs, "Lawyers' Papers: Confidentiality Versus the Claims of
History," Washington and Lee Law Review, vol. 49, no. 1 (1992): 179-211.



Whatever you do, please do not just destroy the files saying the issues
are too hard to deal with.  There is a reasonable solution to be found.

Mark

Mark Lambert
Special Collections and Government Documents Librarian
South Texas College of Law
Houston, TX

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