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Re: Collections Restrictions



I'm going to comment on what Arel wrote concerning restrictions on
collections of lawyer's files.  In my opinion, I think the language in
the post is a little too strong warning people off of accepting lawyer's
records.

Lawyers, as a group, are, and have always been leaders of American
society, and the issues they deal with can have far-reaching affects,
e.g. to include Civil Rights, ADA, 1st Amendment, 2nd Amendment,
Military Tribunals, etc.  We need their records to be in our
repositories.

Granted, we are looking at this subject from two differing points of
view.  Me from the viewpoint of receiving records from an old, grey
retired lawyer, who hasn't tried a case in say 20 years, and Arel trying
to pry the records out of a still practicing lawyer's hands.

Fact: The Supreme Court, and Almost any lawyer in America (except legal
historians) will tell you that attorney-client confidentiality continue
in perpetuity, even after everyone on the case is dead, heck even after
everyone on the earth is dead.

Fact: Lots of archives have lawyer's files in their collections, and I
have not heard of any repository being sued for providing access to
them.

These two facts seem almost mutually exclusive of each other.  However,
the goal is, should you happen to receive, or have lawyer's files in
your repository, do you throw them out, since attorney-client
confidentiality technically goes on forever, or do you attempt to craft
a sound policy that makes these historically valuable records available
for research at some time in the future, while keeping the issues of
privacy and ethics in mind?

My opinion is that a prudent policy can usually be worked out, in
consultation with your institution's attorney, based on how much
exposure to a lawsuit your bosses are willing to accept in providing
access to the records.  In reality, your exposure to a lawsuit is
probably close to zero, but you never know, depending on the issue and
persons involved.  But then, in reality, you have to think, who is going
to sue you, and what for, since a long period of time has passed since
the litigation, and you probably work for a non-profit, which has no
money.

Now, as for going after lawyer's records still in the hands of an
ongoing firm, lotsa luck.  Remember, the still ongoing firm who defended
Lizzy Borden just refused to open her records after 100 years.  So much
for the claims of history.

Mark

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

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