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Waiving History Goodbye? Lawyers' Records and the Scholar (From Law, Society, and the State: Essays in Modern Legal History, P 514-523, 1995, Louis A Knafla and Susan W S Binnie, eds. -- See NCJ-166852)

NCJ Number
P Moore
Date Published
10 pages
This paper examines issues related to scholars' access to lawyers' records in Australia.
For a number of reasons, only a few law firms have deposited their records with cultural institutions that collect archives. Admittedly, lawyers' records that are returned to clients also may become part of the archives of businesses, trade unions, and private individuals. Yet the research value of a legal firm's records applies the law's own "best evidence" rule to history, politics, economics, and society. Lawyers often have the best possible record of the transactions they document, because the clients did not create similar records, have since destroyed them, have died or dissolved (corporate clients), moved away, or gone out of business. A lawyer's client-matter records often contain the richest veins of research material for topics that span the spectrum of scholarly interest. They document the behavior of the lawyers, their levels of skill and enterprise, their writing and negotiating skills, the constitutions of their partnerships, their finances, and their personnel. Legal records are little used by legal historians, partly because their presence in archives is not well known and partly because scholars do not look for them. The real problem with legal records is confidentiality. The lawyer-client relationship is dominated by the lawyer's fiduciary duty to serve the client in trust and confidence. Lawyers generally consider that client- matter files are beyond the reach of scholarly inspection. For most practical purposes, privilege from production in evidence in court proceedings ceases to matter once the proceedings are over or if they cannot be initiated due to a statute of limitations. Still, there are circumstances under which time does not eliminate the need for confidentiality to protect a client's interests. Established controls on archival access to confidential records, however, will answer attorneys' worst fears. Settled policies and procedures will assure lawyers that their professionalism is protected and posterity is benefited. Scholarly, archival, and legal professions must strike a pragmatic balance between the competing interests. 8 notes