This blog is part three of a series comprising a set of primers that address ten complex legal and ethical issues encountered when providing access to born-digital archival records. The guidance is grounded in two foundational beliefs: 1. There is a potential to harm individuals, communities, and institutions if access is not thoughtfully and strategically viewed through an ethical and legal lens; and 2. It is not ethical to restrict access unnecessarily. For more information see: https://osf.io/ketr7/.
The Seeley G. Mudd Manuscript Library of Princeton University in their Guide to the American Civil Liberties Union Records defines attorney-client privilege as “any document reflecting an exchange with a client or a potential client (including but not limited to: written correspondence, memoranda to the file, notes, or any other report of communication to or from a client or potential client) made for the purpose of furnishing or obtaining professional legal advice and assistance” (Seeley J. Mudd Manuscript Library 2020). This common law applies equally to records that are from open or closed cases, but not to any documents filed in court, which are public(1). For attorney-client privilege, the right to the privileged information is exercised by the client.
In addition to attorney-client privilege, attorney work product is a broader category of records that includes any material prepared for litigation, and not just by the attorney (Briston 2016). For these records, right to access is controlled by the attorney, but usually by the time they make it to an archival repository this right has been transferred to the repository via a deed of gift or similar record.
There is not a law that defines the duration of attorney-client privilege, thus people in the legal profession dispute its expiration, starting with the question of whether it expires at all. Some have made suggestions for changes in legal ethic codes for reasonable exemptions or better defining when attorney-client privilege ends, since there has been little direction for the courts or ethics committees (Hobbs 1992).
Given the breadth of interpretation and context required to determine when and where attorney-client privilege applies, there is not broad agreement on how to handle attorney-client privilege in archives. In fact, lawyers are often advised to refrain from archival donations, leaving a large gap in the historical record of an important part of our justice system. Many bar associations have ruled against donating files to archives (Hobbs 1992). If lawyers’ papers make it to a special collections repository, it is often because an heir donated them, but some lawyers donate their own papers at their own risk.
Law firms have some common records management practices. Attorneys often return files to clients or destroy closed files on a retention schedule. Other catalysts for review or destruction in the legal records management lifecycle include when the representation terminates, the lawyer retires or dies, or the law firm dissolves.
Collections where an attorney is the donor or main creator of the material are an obvious place to keep an eye out for records under these restrictions, but lawyer’s collections aren’t the only place you’ll find attorney-client privilege or work product. It may apply in any collection of an individual made privy to litigation, or in the institutional records of any business or organization where litigation has ever occurred. In fact, most special collections repositories steer away from lawyers’ collections because attorney-client privilege can make records donated by lawyers questionable on ethical grounds and extremely difficult to manage.
Archivists must approach these types of records within their own institutional and legal contexts. This information sheet will attempt to provide some guidance in determining how to address attorney-client privilege in the collections you manage.
Most likely to come up in
- Institutional Archives
- Government Archives
- Corporate Archives
- In certain special collections:
- The collection of an individual made privy to litigation
- Collections where an attorney is the donor or main creator of the material
- The collections of a business or organization where litigation has ever occurred
- Could appear especially in email or word processing files in any of the listed types of archives and collections.
Actions for the institution to take
Offer support in the form of legal counsel to the employee responsible for managing access to the collection.
Avoid acquiring collections that are likely to be majority attorney-client privilege or work product if your institution and/or the person managing these restrictions do not have access to legal counsel. Instead, help find a new home for them at an appropriate institution.
Actions for the archivist to take
How can I look for attorney-client privilege in collections?
The good news is that privileged materials are usually marked. The bad news is that different lawyers use different signals and systems for marking their records as privileged, especially in the born-digital context where the method may vary based on type of record, the software used to flag, and the creator’s personal preference. You may find out that records are privileged from an email sensitivity flag, an email footer, a note at the top of a document, or any number of other digital signals. For example, an email may include disclosure language, such as, “This message, including attachments, is confidential and may contain information protected by the attorney-client privilege or work product doctrine.”
You may find some consistencies from collection to collection that help efficiently process records subject to attorney-client privilege, but overall archivists should take a risk management approach in terms of what can be reasonably found, interpreted to be privileged, and restricted appropriately.
What should I do if I come across privileged information in a collection?
If surveying a collection not yet donated, work with the donor to identify where it likely resides, if possible. Define your organization’s role, and its expectations of the donor, in identifying and responding to information subject to attorney-client privilege. This can be included in your donor agreement or in a separate policy. Discuss this policy with donors.
If found in a collection that has already been donated:
- Deaccession and dispose of or return to donor, following terms of donor agreement.
- If you decide to retain material with attorney-client privilege intentionally, decide on a lengthy (50-75 year) closed period. (2)
- Describe at least the restriction type in your finding aid so researchers are made aware that items they request may end up being privileged and inaccessible (Seeley J. Mudd Manuscript Library 2020).
- Bonus: Search for files with similar flags to see if you can identify patterns to process. Note that flagging privileged material, while common practice, is not standardized in terms of technology or vocabulary used. What works for one collection (or one series/box/file of a collection) based on consistent practices of one lawyer will not likely apply in another collection or record grouping.
Document what you and other stakeholders at your organization consider to be due diligence for this task in your own institutional context. Documenting these cases, especially if they are uncommon at your organization, will help reveal a pattern of practices to make future decisions easier, and help future archivists at your organization understand past actions. In addition, documenting these decisions will help if the organization comes under any scrutiny for its decision in the future. Document what you did, why you did it, the dates of any meetings or conversations, and the people involved in decision making. Store this information with the collection consistent with your organization’s practices, which may include adding an electronic document/readme file in the collection’s Archival Information Package (AIP), storing a physical copy of the information with the collection’s control/donor file, or some other local method of maintaining administrative collection information.
Defining your needs
The ideal way to manage attorney-client privilege is pre-acquisition discussions with the donor or transferring department to determine a long-term plan for restrictions and release of material. This will help determine the technical infrastructure the organization needs to provide access to these records later.
It is important to keep a thorough donor file that documents the decisions made and context around any attorney-client relationships identified prior to the donation. This doesn’t necessitate special digital infrastructure, and the donor file could be paper. Having the data in a digital format may allow the archivist to more quickly re-use key information on restriction types or time periods in description repositories/finding aids. An electronic format for administrative collection information can facilitate tasks as low-tech as copying and pasting information into a descriptive system, or as high-tech as automating portions of the organization’s review and release process.
Restrictions = infrastructure
The technical infrastructure you need will vary according to how long the restriction is. Accepting material implies the infrastructure exists or will be built to steward it. To manage very long-term (50-75 year) restrictions, your organization should have a long-term strategy to develop the technical infrastructure expected to preserve digital material for at least as long as the duration of the restriction. Consider this if you are intentionally taking on a collection that contains records subject to attorney-client privilege.
As noted in the section above, methods for flagging privileged material or language that identifies it is not standardized across the legal profession. Thus, it will depend from collection to collection whether an indexing tool such as BulkExtractor (also available in the BitCurator environment) is helpful for processing. If you are successful in finding patterns for restrictions, you can use Bulk Reviewer to take further steps using the data output from Bulk Extractor.
Additional technical infrastructure required to provide access to born-digital records protected by attorney-client privilege:
- If you have a legal department at your organization and work with legal records often, consider exploring ways to gain access to legal case management software. Legal case management software (or “eDiscovery” software) in use at most law firms and institutional legal departments typically includes all the functionality needed to arrange and describe born-digital documents for long-term preservation, but the cost of this software usually makes it out of reach for archives departments to afford their own license.
- At the University of California-San Francisco, for example, a department that does significant work with legal records purchased a subscription to legal discovery and case-management software. After the usefulness of the software became clear, the department was able to work within their funding structure to write the program into a one-year grant budget.
- Workflows for transferring sensitive material to digital preservation repositor(ies)
- A workflow or process for digital destruction of deaccessioned sensitive archival materials
- A descriptive repository, especially one that can connect to other applications for workflow processes, or one with built-in notification methods.
Who is liable if an archivist unknowingly provides access to records protected by attorney-client privilege? It depends heavily on your institutional context.
Manuscript and Special Collection Repositories
In a manuscript or special collections repository where a donor places custody of records with the repository via an agreement or instrument of gift, archives are not automatically liable for a breach of attorney-client privilege, particularly if the archivist had no knowledge of the confidential material (Briston 2016). However, it could still harm the reputation of the repository.
It is important to gather information during the donation negotiation. The key to proper handling of potentially privileged records is knowing the nature of the legal representation and the intent of the parties. If the donor is the creator of the collection, hopefully they will be able to share this information.
Institutional and Government Archives
Most institutional records are scheduled for either transfer or destruction. In institutional, business, and government archives, records transfers are based on retention schedules and most material transferred to the archive is legally obligated to be transferred.
Whether or not the archivist would be responsible for any violations of attorney-client privilege may depend on the public records law that the archives is subject to (which varies from jurisdiction to jurisdiction) and their legal counsel. Consult with legal counsel in your area to understand exactly what you are liable for in your jurisdiction.
For records protected under attorney-client privilege, the client is the only one who can assert or waive the privilege to protect or disclose information.
- For corporate entities, the “client” is the corporate entity, not an individual
- “The privilege continues after an entity or business is dissolved, sold, merged, or bankrupt and applies to successor entities, as well as former top management, directors, and lawyers” (Behrnd-Klodt 2015, 152).
- If the lawyer dies or the law firm dissolves, any files they have not destroyed may be considered abandoned. Abandoned files may be retained by any successor attorney or destroyed
Ethical considerations are different between the professions of the law and archives. While we focus here on the perspective of the archivists, it is important to keep in mind that “the interests of archivists and historians are difficult to reconcile with the lawyer’s ethical duty in light of the legal framework surrounding confidentiality” (Hobbs 1992).
The best way to respect the needs of the archivist, the donor, and the donor’s clients is to get a donor agreement into place at the time of donation that requires removal or another specific agreed-upon plan for these files; or an addendum to the agreement in place if the files are discovered at a later date and the donor can still be contacted. More information on donor agreements and examples of addendums may be found in this publication’s section on Donor Agreements.
Princeton University ACLU records. Collection guide available at: https://libguides.princeton.edu/c.php?g=330597&p=3174253
Williams College restricts material subject to attorney-client privilege to the originating office for 50 years from the date of creation.
(1) This does not include drafts, investigative reports, research and other work that went into the documents filed in court; these types of documents could be privileged even if they are directly related to something that was filed in court. In Behrnd-Klodt, M. L., & In Prom, C. J. (2015). Rights in the digital era. Page 152.
(2) In Behrnd-Klodt, M. L., & In Prom, C. J. (2015). Rights in the digital era. Page 153.
Works Cited and Further Reading
Behrnd-Klodt, Menzi L. “Archival Access to Lawyers’ Papers: The Effect of Legal Privileges” in Privacy and Confidentiality Perspectives: Archivists and Archival Records, ed. M. L. Behrnd-Klodt and P. J. Wosh (Society of American Archivists, 2005), 175-180.
Behrnd-Klodt, Menzi L. “Balancing Confidentiality Concerns and Legal Privileges With Access to Lawyers’ Papers” in Navigating Legal Issues in Archives (Chicago: Society of American Archivists, 2008), 125-131.
Behrnd-Klodt, M. L. and Prom, C. J., eds., Rights in the Digital Era (Chicago: Society of American Archivists, 2015).
Briston, Heather. 2016. “Rights and Confidentiality.” Society of American Archivists Arrangement and Description Certificate Program. More information: https://www2.archivists.org/prof-education/course-catalog/rights-and-confidentiality
Hobbs, Bonnie. 1992. “Lawyers’ Papers: Confidentiality versus the Claims of History.” Washington and Lee Law Review 49 (1): 179. https://scholarlycommons.law.wlu.edu/wlulr/vol49/iss1/13/. (This article covers the steps a lawyer should take when donating papers to a repository, and includes a review of legal ethic codes and known interpretations of those codes.)
Seeley G. Mudd Manuscript Library. “Research Guides: Guide to the American Civil Liberties Union Records: Types of Access Restrictions.” Princeton University. Libguides.princeton.edu. Accessed March 2, 2021. Available at: https://libguides.princeton.edu/c.php?g=330597&p=3174253
Shilling, Patrick. 2001. “Attorney Papers, History and Confidentiality: A Proposed Amendment to Model Rule 1.6.” Fordham Law Review 69 (6): 2741. Available at: https://ir.lawnet.fordham.edu/flr/vol69/iss6/13
Primary Author of this section: Jess Farrell, Community Facilitator, Educopia Institute
Co-Authors: Jessika Drmacich, Kate Dundon, Christina Velazquez Fidler, Hannah Wang, Camille Tyndall Watson
Thank you to Elvia Arroyo-Ramírez, Heather Briston, Sarah Demb, Charlie Macquarie, and the many other community contributors for feedback and edits to this portion of Legal and Ethical Considerations for Born-Digital Access.