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The records of lawyers : archival appraisal and access Gourlie, Michael 1994-02-25

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THE RECORDS OF LAWYERS:ARCHIVAL APPRAISAL AND ACCESSbyMICHAEL GOURLIEB.A. (Hons., Arts Co-op), The University of Victoria, 1990A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARCHIVAL STUDIESinTHE FACULTY OF GRADUATE STUDIESSchool of Library, Archival, andInformation StudiesWe accept this thesis as conformingto the required standardc.cL?wrTHE UNIVERSITY OF BRITISH COLUMBIAMarch 1994© Michael Gourlie, 1994In presenting this thesis in partial fulfilmentof the requirements for an advanceddegree at the University of British Columbia, I agreethat the Library shall make itfreely available for reference and study. I further agreethat permission for extensivecopying of this thesis for scholarly purposes may be grantedby the head of mydepartment or by his or her representatives, It is understoodthat copying orpublication of this thesis for financial gain shall not be allowedwithout my writtenpermission.(Signature)Schcô)iartmen4 of L hrPrckJt.10A1w1The University of British ColumbiaVancouver, CanadaDate (LtJ.25DE-6 (2188)IIABSTRACTDespite the importance oflawyers as persons withinthe legal system, theiractivities have not beenwell-represented inthe documentary heritage ofsociety aspreserved in archives.The primary reason behindthis situation is the principleofsolicitor-client privilege,which traditionally protectsthe lawyer-client relationshipfrom disclosure. The privilegehas not only barred thearchival acquisition ofandaccess to client ifiesfor research purposes buthas also apparently preventedany in-depth study of the recordslawyers create.This study attempts toshed light on the recordscreated by lawyersand theirpossible disposition. First,the thesis uses the conceptsof diplomatics andananalysis of the historical developmentof lawyers to categorizetheir work. Thefunctions it defines includemaintaining a legal practice,contributing totheprofession and providinglegal services to clients.The thesis then examinesthe central function of providinglegal services byanalyzing an actuallawyer’s fonds and comparingit with related recordsin courtregistries. This analysisillustrates how lawyersrecords fall bothinto functionalcategories and diplomaticphases. It also reveals that, contraryto certain observers,few of the documents inthe lawyer’s ifie appearin the court registriesand evenfewer are preserved inarchives as a result ofrecords management decisionsby theregistries.mThese findings provide groundsto consider archival appraisalof lawyers’records. First, it isargued that concerns aboutsolicitor-clientprivilege need notinhibit preservation and accessto lawyers’ records in archivalinstitutions. With thisimpediment removed, archivistscan proceed to acquire thefonds of lawyers onaselective basis bothamong and within fonds.In terms of appraisalfor selection,certain records resultingfrom the activities withinthe functions of maintainingalegal practice and contributingto the profession are worthyof permanentpreservation and haveno access restrictions ontheir use. For thefunction ofproviding legal services,a statistically-valid sampleof these case files shouldbepreserved to illustratethis aspect of a lawyer’s work.However, it is vitalthatlawyers and archivists mustwork together on findingmutually acceptable policiesthat both respect the privacyof clients and allowaccess to the recordof legalpractice for future generations.TABLE OF CONTENTSivAbstractTable of contentsList of tablesAcknowledgementsIntroductionChapter 1: The Functions and Activitiesof LawyersChapter 2: Testing the Functional ModelChapter 3: Archival Appraisal and Access tothe Records of LawyersChapter 4: ConclusionBibliography11ivVvi1830457479VLIST OF TABLESTable One: Phase/Document Comparison37Table Two: Comparison to Public Record43viACKNOWLEDGEMENTSAlthough I owe numerous academic debts, I would particularly like to thankTerry Eastwood, for his patience and creativity in his supervision of my thesis,andLuciana Duranti, for her insightful comments on the use of diplomatic conceptsinthis work. I am also indebted to Mary Sue Stephensonfor her comments inconnection with my research methodology for the case files. It would alsobe remissnot to mention John Young Copeman, the lawyer whose fonds originally inspiredmy thesis; Thomas Norris, the lawyer whose records form thebackbone of thethesis; and John Norris, who donated his father’s archives toUBC SpecialCollections. I must also thank David McCrady, who, throughout this andmany otherexperiences, has remained a true and valued friend.This thesis is dedicated to my family, whose constant supportof myeducation has made completion of this thesis possible.1INTRODUCTIONAll societies are governed by some form of law,whether these laws are basedon tradition, religion, secular philosophyor perhaps even force. Defined as “a bodyof rules for the guidance of human conduct whichare imposed upon and enforcedamong the members of a given state,” law definesthe rights and obligations of allpersons within society, regulates their interactions,and provides a means to resolvedisputes. Although the concept oflaw in the industrialized western world usuallybrings to mind images of thick volumes of statutes,unwritten tribal customs in non-industrial societies regarding successionof leaders or the inheritance of propertymust also be considered a form of law.2Law itself does not constitute a legal system.A legal system requirespersons, both natural and juridical, to createlaws, to interpret their meaning, toadjudicate claims that laws havebeen transgressed, and to pass judgementon thosewho have broken the law.3 Gall identifies threecategories of persons who make‘Gerald L. Gall, The Canadian Legal System3rd ed. (Toronto, 1990),p.3.2Jean Barman, The West Beyond theWest: A History of British Columbia(Toronto, 1991),p.15-17 provides examples of the juridicalsystems of theindigenous peoples of BritishColumbia, including matrilineal inheritanceofproperty.A physical person is simply a human being. LucianaDuranti, “Diplomatics:New Uses for an Old Science,” Archivaria no.28 (Summer 1989),p.25, note 20,defines a juridical person as “an entity havingthe capacity or the potential to act2up the legal system and are relevant to this study.4 The first category of person isthe court, the juridical person who interprets the laws of societyto adjudicatedisputes. Courts are presided over by judges, the juridical persons who wield thepower of the court. The second category of person is the lawyer, who acts as ajuridical person representing either physical or other juridical persons. The thirdand final category includes the various regulatory bodies, agencies, departments,and additional juridical persons with discrete legal powers andduties to perform.All these elements are interrelated in terms of their mandates and, consequently,their records. One could consider extending the boundaries of the definition ofalegal system to include the creation of laws and the enforcement of the judgmentsof the system, but these are related aspects to the legal system with a separateexistence, not integral components of the system itself.The critical role of a legal system in regulating transactions among personsobviously affects the nature of its documentary heritage. In societies dependent ondocuments to record information about these transactions, the mandateof thearchivist is to preserve those documents of the legal system which maintain itslegally and constituted by either a collection or succession ofphysical persons or acollection of properties.” Examples of juridical persons provided by Duranti includestates, corporations, committees, positions filled by individuals,or estates ofdeceased persons.Gall, Canadian Legal System,p.184. Gall identifies a fourth category,specialized administrative personnel, such as paralegals, who assistlawyers andjudges. However, only the three categories discussed below have the right toexercise power within the legal system and, therefore, are ofinterest to thisdiscussion of the legal system.3accountability and documentary heritage. Therefore, it is incumbent upon archiviststo understand the nature of the records produced by the legal system in order toensure that the records appropriate to these ends are preserved.Within the body of archival literature, there are some sources pertaining tolegal records. However, in the introduction to her thesis examining the concept oflegal value, Heather Heywood notes a certain vagueness about what constitutes‘legal records” and a distinct lack of scholarly exploration into the subject.5Although many historians have expounded on the value to their work of varioustypes of records pertaining to the operation of law in society, archivists have not,for the most part, pursued detailed studies of the records generated by all facets ofthe legal system.6This situation is gradually changing as archivists examine what is meant by“legal records”. Using diplomatics and law, Heywood determined that legal valuecould be conferred upon any record, depending on its relationship to a juridicallyrelevant event, the admissibility of the record in court, and the effectiveness of therecord in representing the facts at hand.7 Throughout her study, Heywood clarifiesHeather Heywood, “Appraising Legal Value: Concepts and Issues,”(Unpublished M.A.S. thesis, University of British Columbia, November 1990), p. 8-9.6Some detailed studies have been conducted, notably Barry Cahill, “Bleak HouseRevisited: The Records and Papers of the Courts of Chancery of Nova Scotia, 1751-1855,” Archivaria no. 29 (Winter 1989-1990): 149-167, and Michael StephenHindus et. al., The Files of the Massachusetts Superior Court. 1859-1959: AnAnalysis And A Plan For Action (Boston, 1979).p. 131-133.4the concepts behind the legal values that any record could have, therebyilluminating some of the issues surrounding “legal records”.Heywood does not specifically examine the various categories of recordsgenerated by the legal system. For the most part, there have been few in-depthstudies of these records creators. Daisy McColl’s thesis pertaining to the SupremeCourt of British Columbia is one exception. It blends a history of the court and itsrecord-keeping procedures with a brief examination of the nature of its records andtheir appraisal.8The nuances and intricacies of the records of many elements of thelegal system await exploration.This thesis sets out to examine the records of lawyers, one of the classes ofpersons involved in the legal system. As the representatives of physical or juridicalpersons in the complex modem legal system, lawyers perform an important role insociety through their advocacy of their clients’ interests. In addition, many personsprominent in the political, corporate and other fields have been lawyers byprofession. Many legal and social historians, as well as archivists, regard therecords of law firms, particularly the client case files, as an untapped source ofinformation about the law and society.The problem of providing access to these records presents a conundrumtoarchivists, lawyers and researchers who would use such records. By virtue of the8Daisy McColl, “An Administrative History of the Supreme Court of BritishColumbia with Particular Reference to the Vancouver Registry: Its Civil Records,their Composition, and their Selection for Preservation,” (Unpublished M.A.S. thesis,University of British Columbia, October 1986).5common law tradition of solicitor-client privilege, neither clients nor their lawyersare obliged to reveal the nature of any communications between them. Thisprivilege is a basic tenet of the common law system and has evolved in order toprotect the rights of the client. Violating solicitor-client privilege can even lead tothe disbarment of the lawyer who transgresses this fundamental principle. Despitethis impediment to secondary use, some records of lawyers have found their wayinto archival institutions.The difficulty of resolving the access question is the starting point for thisexamination of the records of lawyers. Lawyers’ professional obligation requiresthem to protect their clients’ confidences, yet preserving these records in an archivalrepository implies that access will be provided. On first glance, the protection ofthe client’s interests and archival access appear irreconcilable,In order to study this issue, the overall functions and activities of lawyersmust be characterized as the first step of an understanding of the complete rangeof records created by lawyers during their conduct of legal practice. Only with thischaracterization of the records in mind can the problem of archival appraisal,preservation and access be addressed.To attain the necessary understanding of what constitutes lawyer’s records,the first chapter is devoted to developing a conceptual model of the functions andactivities undertaken by lawyers. It uses archival theory as well as study of thehistorical development of the legal profession to determine the functions andactivities. This method of functional analysis has been used previously by other,6parallel studies of artists, university professors, and universities.9 Although thismethod of analysis is in its infancy, at least in the English-speaking world, it hasalready been demonstrated that it provides a useful basis for classifying andexplaining the records of a given type of creator.The second chapter will employ the conceptual model of a lawyer’s functionsand activities to analyze the records of a lawyer. In all previous studies usingfunctional analysis, the authors developed their analysis in theoretical terms but didnot apply their results to existing records. Only by applying the model to an actualfonds can its true worth be accurately assessed. This chapter of the thesis will alsoexamine the relationship between court records and those contained within thelawyer’s fonds. Although lawyers often justify the destruction of their files on thebasis that related official records maintained by court registries contain all theinformation that is needed, a comparison of the linkages between the recordsgenerated by lawyers and the records of the court system has never been attemptedto determine how much duplication exists between the lawyers’ files and those ofthe court registries, a fact which may affect the archival appraisal oflawyers’ records.1°Victoria Blinkhorn, “The Records of Visual Artists: Appraising for Acquisitionand Selection,” (Unpublished M.A.S. thesis, University of British Columbia, May1988); Frances Mary Foumier, “ Faculty Papers: Appraisal for Acquisition andSelection,” (Unpublished M.A.S. thesis, University of British Columbia, May 1990);Donna Irene Nisbet Humphries, “Canadian Universities: A Functional Analysis,”(Unpublished M.A.S. thesis, University of British Columbia, Spring 1991); HelenWilla Samuels, Varsity Letters: Documenting Modem Colleges and Universities(Metuchen, N.J, 1992).‘°See Brian Bucknall, “The Archivist, the Lawyer, the Clients and their Files,”Archivaria no. 33 (Winter 1991-1992): 185-186 for a lawyer’s viewpoint on the7Building on the information provided by the test of the model, the thirdchapter discusses appraisal of lawyers’ records for both acquisition and selection.It presents a set of ideas aimed to represent lawyers’ records in the documentaryheritage, in the sense that no aspect of human activity should be hidden from thepossibility of continuing scrutiny. It then addresses how the perennial problem ofaccess to client files can be managed, as this has often clouded consideration of thematter.Ultimately, then, this thesis has three objectives. First, the study willcharacterize the functions and activities conducted in contemporary legal practiceto create a model for analyzing lawyers’ records. Then, it will test the modelagainst the reality of one body of records preserved in an archives. Then, it willdiscuss the related problems of appraisal and access to lawyers’ records. The aimis to provide a comprehensive view of the lawyers’ role in the legal system, thekinds of records they produce, and the role archivists can play in preserving a recordof legal practice in society’s documentary heritage.preservation of documents in the public domain.8CHAPTER ONETHE FUNCTIONS AND ACTIVITIES OF LAWYERSIn their article, “The Power of the Principle ofProvenance”, David Bearmanand Richard Lytle propose a new form of archivalinformation retrieval systems.One component of such a system is the use of functionsto provide better access torecords.Functions are independent of organizational structure, more closelyrelated to the significance of documentation than organizationalstructures, and both finite in number and linguistically simple.’Bearman and Lytle point out a number of advantages ofanalyzing functions.Because records follow function, functional studiesilluminate the character ofactivities and the records they produce in general terms and avoid theinevitablecomplications bestowed upon records systems by the variety and changeoforganizations. Therefore, this chapter will establish a conceptual basisof afunctional study, explain the methodology necessary to conduct afunctionalanalysis, and use this methodology to analyze the work of lawyers.A function can be defined as “all of the activities aimed to accomplishone1David A. Bearman and Richard H. Lytle, “The Power of the PrincipleofProvenance,” Archivaria no. 21 (Winter 1985-86): 22.9purpose, considered abstractly.”2 The concept of function has been present inthewritings of several archival theorists since the nineteenth century. The1898manual of Muller, Feith, and Fruin links functions to the phenomenonofadministrative change, a theme also expressed in the writingsof Margaret CrossNorton and Peter Scott.3 While these authors focus mainlyon the difficultiescreated for the identification of archives as a result of organizational change, MichelDuchein directly addresses the reason why the concept of functionis relevant toarchivists. He states that “the archival document is presentin the heart of afunctional process, of which it constitutes an element, howeversmall it may be.”4When comparing Duchein’s statement to the definitionof a function, thecommon factor between them is the interplay between activitiesand documents.The comparison indicates that both activities and documentsoccupy the sameposition in terms of their relationship to a function. Logically, the activities whichmake up a function must also be the point of origin for the creationof documents.Therefore, because documents result from activities, the disciplineof diplomatics,2University of British Columbia, School of Library, Archivaland InformationStudies, “Select List of Archival Terminology,” s.v. “function”(p.8).35Muller, J.A. Feith and R. Fruin, Manual for the Arrangementand Descriptionof Archives (New York, 1940),p.22-25; Margaret Cross Norton, NortononArchives: The Writings of Margaret Cross Norton on Archivaland RecordsManagement (Carbondale, 1975),p.110-113; P.J. Scott et. al., “Archives andAdministrative Change,” Archives and Manuscripts7, no. 3 (April 1979): 151, 154.Michel Duchein, “Theoretical Principles and Practical Problemsof Respect desFonds in Archival Science,” trans. Kay Brearley and Louise Ouellette,Archivaria no.16 (Summer 1983): 67.10which studies the creation, form, transmission and context of documents,can beused to study activities. In terms of diplomatics, activities can be viewedasprocedures which can be categorized and broken down into distinct phases.5These inferences indicate the usefulness of functional studies to archivists.By connecting functions, activities and documents, archivists can achieveanincreased understanding of how an archives is generated and what its substanceis.This fundamental understanding directs the entire treatment of archives. Becausethey are abstract by nature, functional studies can establish generic classificationschemes or models applicable to any number of classes of juridical ornaturalpersons without reference to the peculiarities of the way they administertheiraffairs.These contributions are evident in the number of functional analyses whichhave been completed. Victoria Blinichorn’s study of the records of visual artistsidentified a number of functions and activities, linked them to recordsseries, anddiscussed a plan for acquisition and appraisal.6 In a similar manner,FrancesFournier’s study of professors established the functionsof university facultymembers, characterized the classes of records series in each function,and thenformulated a framework for acquisition and appraisalof professors’ records.7For a more detailed explanation of the use of phases in cliplomatics, seepg. 29.6Victoria Louise Blinkhorn, “The Records of Visual Artists: Appraising forAcquisition and Selection,” (Unpublished M.A.S. thesis, Universityof BritishColumbia, May 1988).Frances Mary Foumier, “Faculty Papers: Appraisal for AcquisitionandSelection,” (Unpublished M.A.S. thesis, University of British Columbia, May1990).11Clearly, such studies greatly assist the work of archivists by establishing ananalytical framework applicable to a class of fonds. Studies of various actualexamples can then test the framework of ideas to confirm or alter it.Although described as functional analyses, such studies must reach beyondfunctions in order to begin. The starting point for a functional analysis in thesegeneral terms is the mandate, which might be described as the authority of the classof entity in question to administer a matter.8 A class of organization or occupationperforms the same overall role or mandate. This mandate is expressed by thefunctional responsibilities which are commonly assigned to all organizations orpersons within that class. In essence, a mandate permits an occupation ororganization to undertake a function or set of functions and activities in society.An organization or occupation can receive a mandate from several, differentsources. Society at large can grant a mandate either through long-lived customs oras a matter of law. An organization such as a voluntary organization or a businessmay establish its own mandate, which is then recognized by the members who jointhe organization and, perhaps, by society itself in some formalized way. In systemsof government similar to those in Canada, the sovereign power creates the mandatesof agencies by delegating functional responsibilities to them through legislation orby providing legislation to govern the affairs of classes of organizations oroccupations.8Lewis J. Bellardo and Lynn Lady Bellardo, compilers, A Glossary for Archivists.Curators and Records Managers, SAA Archival Fundamentals Series (Baltimore,1992), p. 21.12The functions within the mandate canbe classified as either substantive,encompassing the activities typically performedby the organization or occupation,or facilitative, including those activitiesrequired solely to sustain the organizationor occupation.9 Once functions have been established,the activities encompassedwithin each function can be identified and linkedto series when the model isapplied to a particular fonds. If necessary, theseactivities can be broken down intothe procedural phases identified by diplomatics,a step which leads to the documentsthemselves.10 Using this methodology, the remainderof the chapter will focus ona functional analysis of lawyers.The role of lawyers in society originates fromtwo sources. The first sourceis a form of social mandate. After centuriesof tradition and inculcation, society hasrecognized that lawyers are necessaryparticipants in proceedings wherethe exactdetermination of legal rights is in question. Asa result of this tradition, personsappoint lawyers to act as their agents.The second and more tangible mandate isset down in legislation. In Canada,provincial governments have passedlegislation for a number of professions,including pharmacists, doctorsand lawyers, that establishesprofessionalorganizations. These organizationsdetermine the proper conduct of theirmembersThis classification of functions is takenfrom T.R. Schellenberg,ModemArchives: Principles and Techniques(Chicago, 1956; reprint, Chicago,1975),p.54.‘°Some activities may notbe worth analyzing at the level of proceduralphases.Setting particular policies, auditing finances,and other activities common tomanyorganizations would not normally beworth taking to this level. Activitiesuniqueto an organization are likely candidatesfor such detailed analysis.1.3and are largely self-regulating. For example, British Columbia’s Legal Profession Actcreates the provincial law society and establishes procedures for its governance.11Although no specific mandate is defined for the functions of individual lawyers, thelaw society itself is given several duties which might involve individual lawyers,including preservation of rights and freedoms of all persons, maintenance of theintegrity of its members, establishment of professional standards, regulation of thepractice of law and protection of its members.’2The next step is to determine the functions necessary to accomplish themandate. Essentially, there are two sources to consider when defining the functionsundertaken by lawyers. First, there are the various acts which establish theprovincial law societies and create the rules for the conduct of modern lawyers. Thesecond source is the history of the legal profession, which indicatesdistincthistorical traditions in terms of the lawyer’s activities. Examining these sources,three functions become apparent: maintaining a legal practice, contributing to theprofession, and providing legal services to clients.In terms of their classification, both substantive and facilitative functions arepresent. Maintaining a legal practice is a facilitative function, while the provisionof legal services to clients is substantive. Contributing to the profession is neithera facilitative nor a substantive function. While clearly not facilitative becauseof its‘British Columbia, Revised Statutes of British Columbia (Victoria: QueenPrinter for British Columbia, 1988), c. 25.12s. 3.14unique professional focus, contributing to the profession is not substantive becauseit is not found within every legal practice or firm. Since the function is an optional,avocational pursuit associated with the profession, it is related moreto theindividual member and cannot be considered in the same vein as a substantivefunction required by all the members of the profession.Maintaining a legal practice is clearly one of the basic functions ofthelawyer. In order to conduct business effectively, the lawyer must establishandmaintain a basic infrastructure found within any office setting. Some elementsofthis function are common to any business, necessitated by the rules prescribedbyBritish Columbia’s Company Act. For example, some aspects of the conductof anincorporated lawyer, including the filing of annual reports with the government,aregoverned by the provincial Company Act.Other parts of this maintaining function are specific to the legalprofessionand are required by the law society, particularly the requirement for the lawsocietyto certify lawyers practicing within its geographical limits. Perhapsthe mostimportant aspect of this maintaining function within the legal professionis theconcept of the law firm. One type of law firm is the individual practicein which alawyer practices law alone. While this type of practice is moreprevalent in theUnited States than in Canada, the number of individual practitioners isdeclining inboth countries.The dominant trend in the legal profession is towards partnerships.Apartnership consists of two or more lawyers, usually bound by formal partnership15agreements pertaining to the division of the finn’s income and the control ofmanagement decisions, working in the same office or in various branch offices ofthe firm. In the United States, over 50 percent of all practices are law firmsinvolving two or more lawyers.13The concept of the partnership is a relatively recent innovation in the legalprofession. In England, partnerships were rare prior to the mid-eighteenth centuryand evolved only as the professions of solicitor and attorney were formallyrecognized.’4 These partnerships were small and involved either two or threepersons. Although solicitors worked closely with barristers, it appears that firmsincorporating the services of both barristers and solicitors did not evolve in theEnglish legal tradition.The concept of partnership evolved significantly in North America. Prior tothe Civil War, American law finns remained small. Lawyers treated the firm fluidly,moving on to form other firms and taking their clients with them. After 1870, lawfirms began to grow significantly larger. The expansion of industrialization, theincreased legal needs of corporations, and the rise of cities all contributed to thisgrowth. In 1872, only four law firms in one city could boast of a complement offive or more lawyers. By 1893, sixty-seven firms in twenty-one cities ranged in size‘Barbara A. Curran, “American Lawyers in the 1980s: A Profession inTransition,” Law & Society Review 20 (1986): 29.14William Cobb, A History of Grays of York, 1695-1988 (York, 1989), p. xiii.16from five to eleven members.’5 This growth was facilitated by a new type of lawfirm, pioneered by Louis Brandeis and Paul Cravath. These men hired graduatesfresh out of law school and paid them to work exclusively for the firm’s clients.These graduates would remain with the firm unless they could not become partners.In addition, these firms adopted the latest office technology and techniques, suchas telephones, typewriters and standardized filing systems, to increase productivityand efficiency. This new type of law firm, known as the law factory, had spreadthroughout the United States by the 1920s.’6Recent developments in the structure of law firms have gone beyond the lawfactory to create enormous law firms. Establishing branch offices of the same firmin various cities has created law firms of nearly three hundred lawyers.’7 Anothertrend is to merge law firms, either within cities or across a nation. One of the mostambitious programs of growth was undertaken in the late 1980s by the Toronto lawfirm of McCarthy and Mccarthy. In a relatively short period of time, Mccarthy andMcCarthy merged with a firm in Montreal, absorbed law firms in Vancouver,Calgary and Ottawa, and established offices in Hong Kong and England to create amultinational legal conglomerate that cuts across the boundaries of nations,Wayne K. Hobson, “Symbol of the New Profession: Emergence of the LargeLaw Firm, 1870-1915, “in The New High Priests: Lawyers in Post-Civil WarAmerica, ed. Gerard W. Gawalt, Contributions in Legal Studies no. 29 (Westport,Conri, 1984), p. 11.16p.19.‘See Marc Galanter and Thomas Palay, Tournament of Lawyers: TheTransformation of the Big Law Firm (Chicago, 1991), Appendix A for figures on thesize of various American law firms.17languages and even legal systems.18In spite of the enormous differences between individual practices andmultinational practices, the basic activities involved in maintaining a legal practiceremain largely the same because law firms all require similar infrastructures.Obtaining certification from the law society is an essential starting point in orderto practice law within the society’s jurisdiction. Incorporating a legal practice is anactivity which may occur for a number of purposes, such as the limitation oftaxation or liability. With the establishment of these elements, other office-relatedactivities can be undertaken. Hiring and maintaining salaried staff may not occurin the practice of an individual lawyer but is an especially important activity forlarger law firms. Setting policies and procedures, such as those pertaining to billingor cases to be accepted, may also be considered part of maintaining the lawpractice. Placing advertisements and conducting marketing surveys are additionalactivities which law firms may pursue.Several activities within the function of maintaining the legal practice pertainto the partnerships which have become so common within the profession. Formingthe partnership establishes the rules and the exact relationship between thepartners. Adding partners naturally occurs as a result of the growth of a law firmover time. Conversely, removing partners may occur with the resignation or deathof a partner.Additional activities result from the financial aspects of maintaining the legal18Vancouver Sun, 31 January 1990,p. D9.18practice. Paving debts is an obvious activity related to the ongoing existence of thefirm. A related activity is receiving payments for services rendered by lawyers totheir clients. This activity would include money received in trust either as a retaineror pending the settlement of a legal action. Another basic activity is distributingprofits from the law practice. The final activities pertaining to financial matters arepaving taxes or auditing finances, essentially summarizing all financial activities fora specified period of time.The second function performed by lawyers is contributing to the profession.This function concerns all those activities related to serving the profession orpromoting further understanding of it among the general public, students, and otherlawyers. While undertaking this function is not a requirement of being a lawyer,a certain percentage of lawyers include it as a normal part of belonging to theirprofession.There are a number of activities which constitute this function. Writingarticles for publication either in scholarly journals or newsletters is perhaps the mostobvious activity. Speaking publicly before other lawyers or the general public isalso part of this function. Conducting seminars may also take place before thepublic or other lawyers. Acting as a law society official, perhaps as an electedofficial or on a committee, is another important activity.Before discussing the final function of lawyers, there are two functions whichmay be associated with lawyers but truly belong to other professions. First, lawyersmay act as professors and teach courses rather than short-term seminars. Teaching19is essentially another occupation and is a function of the institution whose mandateis to provide education in a certain subject. Secondly, lawyers who are appointedjudges become members of that profession. The mandate and, therefore, thefunction of judges belongs with the court system established and monitored by thegovernment.The most important function of the lawyer is the one most closely associatedwith the legal profession, providing legal services to clients. In a complex legalsystem based upon an exacting and complicated body of law, precedent andprocedure, lawyers undertake this function and use their expertise to represent theinterests of their clients. This function clearly addresses the one aspect of themandate suggested by British Columbia’s Legal Profession Act, namely thepreservation of rights and freedoms of all persons. Although rather wide-ranging,this phrase does define the role of the legal profession in society. All otherfunctions and activities are facilitative and largely secondary considerations to thisfunction, which is the reason for the existence of a separate profession.In order to understand the basis of the activities undertaken in providinglegal services, some historical background regarding the development of theprofession is necessary. The legal profession had its beginnings in Ancient Greece.Initially, there was no separate profession which could be defined as lawyers. Inpresenting a case before a magistrate, litigants were required to speak and present20their case in person.’9Although the litigantwas obligated to speakat some pointduring the proceeding,he could obtain thepermission of thejury to allow otherpersons, usually relatives,to speak either in placeof the litigant or provideaconclusion to the litigant’sspeech. With the precedentset by a dying man whowasunable to speak in his owndefense, cases graduallybegan to be handled entirelybypersons other thanthe litigant, whether thesepersons were relatives,friends orsomeone experiencedin legal proceedings.2°By the middle of the fourthcenturyBC, the pretense of someform of association withthe litigant wasabandoned, andadvocates, the precursorsof our modem profession,becameHawell-establishedfactor in litigation.”2’The growth of theRoman empire witnessedthe coalescenceof the legalprofession into four distinctareas of activity. First, procuratorsspoke on behalfoftheir clients before magistrates.The main functionsperformed by theprocuratorwere “to frame the issuesto be tried” and influencethe creation of themagistrate’sjudex, which was essentially“the pleadings of theparties and directionsas to whatjudgement to renderin case certain issues werefound or not found.”Second,advocates or orators spokeon behalf of theirclients during the actualtrial phase of19Robert J. Bonnerand Gertrude Smith, TheAdministrationof Justice fromHomer to Aristotle(Chicago, 1970), vol.2, p. 7.p.8-9.21p.12.22Roscoe Pound, TheLawyer from Antiquity to ModemTimes, with ParticularReference to the Developmentof Bar Associations inthe United States(St. Paul,1953),p.42.21the legal proceeding. Third, jurisconsults acted on behalf of clients as “an advisoras to wills and conveyances, and formal transactions, and as to [client’s] legal rightsand duties.” It was this category of legal practitioner acting as teachers and juriststhat perpetuated the legal profession through Roman times. Finally, there werenotaries, who wrote and formally witnessed the signing of legal documents.24With the disintegration of the Roman Empire, this division of labour in thelegal system collapsed. The traditions of self-representation and customary lawreturned. The only circumstances which called for a lawyer-like presence wererepresentation in ecclesiastical courts and the creation and notarization ofdocuments recording the existence of transactions.With the revival of a formal judicial system in twelfth century England,litigants soon won the right to be represented by another person in court.25 Thosewho represented and advised a person during a legal proceeding were knowncollectively as pleaders. By the middle of the thirteenth century, two distinct classesof pleaders had emerged. The preeminent class of pleaders was the serjeant.Experienced pleaders who spoke before the Chancellor and Court of Common Pleas,serjeants formed the pool from which judges were chosen. Although it was apredominant feature of the English legal system for four hundred years, this classbegan to decline in the sixteenth century when its monopoly on judicial23Ihid., p. 55.24A.M. Carr-Saunders and P.A. Wilson, The Professions (London, 1933), p. 55-56.25Ibid., p. 31, 32.22appointments ended. The position of serjeant existed until it was formally abolishedduring nineteenth century reforms to the judicial system.26The second class of pleader was known as an apprentice. Members of thisclass formed the group from which serjeants were chosen. In the medieval era,apprentices were trained at law schools, such as Lincoln’s Inn or the Inner Temple,which were collectively known as the Inns of Court.27 Having completed his legalstudies, the apprentice was then called to the bar of that particular Inn, whichexercised disciplinary control over the conduct of the apprentice.28 By the fifteenthcentury, the term “apprentice” had been replaced by the word “barrister”. This termis still applied in England to that class of lawyers who pleads cases in court or othertribunals.The pleaders and later the serjeants and barristers formed one branch withinthe legal profession. A second branch had been established by the fourteenthcentury, when a class known as attorneys began to act as agents for clientsrequiring any kind of legal advice or assistance. Although apprentices often actedas attorneys at this time, “a wholly separate branch of the profession”29 hademerged by the seventeenth century to manage legal affairs outside litigation in thecourts. As a class, attorneys were trained by apprenticeship rather than education26j]j4.,p.34-35.27Robert N. Wilkin, The Spirit of the Legal Profession (New Haven, 1938),p.41.28Pound, The Lawyer from Antiquity to Modern Times,p.85.29Ibid., p. 86.23and had no professional disciplinary organization. With the development of writtenrather than oral pleadings, the attorney began to focus on “the use of commonforms of procedure and the practical processes of obtaining legal results.”3° Theattorney acted as an intermediary between the client, who presented the legaldifficulty for the creation of the pleading, and the barrister, who was actuallyretained by the attorney to argue the case on the basis of the prepared pleading.31As the work of attorneys became more specialized, another type of lawyer,known as a solicitor, emerged by the middle of the fifteenth century. Solicitors tookover the role as agents for all the legal business for a particular client without actingas a barrister or attorney. This function was especially important with the growthof the courts of equity at Westminster.32 Solicitors could present petitions forclients unable to travel to the sitting of this court. Although solicitors lacked formalstatus in the legal system, they gained a measure of recognition as a profession atthe beginning of the seventeenth century.33 By the mid-eighteenth century, therewas no legal distinction made between attorneys and solicitors. The profession ofattorney lost its legal status in 1874 when members of this profession assumed thep.103.31Ibid.,p.104.32Gerald L. Gall, The Canadian Legal System 3rd ed. (Toronto, 1990),p.54explains that courts of equity were established to award extraordinary remediesbeyond the written letter of the law. These courts, eventually known as courts ofchancery, were merged with common law courts in the late nineteenth century.thid.,p.109.24name solicitor by an act of the British Parliament.34 The term “solicitor” is still usedin England to define those members of the legal profession who draft documents forclients and retain barristers to argue cases in court.In addition to the barristers and solicitors, a third branch of the legalprofession, notaries, also existed in England. Initially, notaries merely drafted thelegal documents for clients but soon specialized in the preparation of contracts andsimilar documents required by the English trading profession.35 This intrusion intothe work of solicitors resulted in a legal decision that resulted in “all ordinaryconveyancing pass[ing] into the hands of the solicitors.”36 The activities whichwere left to the notaries included the preparations of wills, powers of attorney,articles of partnership and related documents.The introduction of English legal institutions in North America had differingresults in the United States and Canada. The American colonies preserved theEnglish distinction between attorneys and barristers until the American Revolution,after which the differences between them were gradually removed.37 The legalprofession in Canada emerged from a different source. While Canada was a Frenchcolony, there were no divisions between barristers, advocates, notaries and landA.A. Stager and Harry W. Arthurs, Lawyers in Canada (Toronto, 1990),p.20.Carr-Saunders and Wilson, The Professions,p.56.36Ibid.Pound, The Lawyer from Anticiuitv to Modern Times,p.147-148, notes thatdistinctions between the professions in various colonies, such as Virginia, began todecline after the American Revolution.25surveyors. The English maintained the French system after the Conquest, evenwith the introduction of English law. Begirming in 1.785, attempts were made toseparate the professions; an act of that year stipulated that barristers and attorneyscould not act as notaries.39 The work of barristers and attorneys were officiallydefined and, the two professions were separated in 1857, but most members of oneprofession ultimately qualified to act in the capacity of the other.4° Since the latenineteenth and early twentieth centuries, the work of barristers, solicitors, attorneysand their predecessors has ultimately evolved into what society recognizes as thelawyer of present day.Throughout the historical development of the legal profession, there areobvious common threads which indicate the activities that modern Canadian lawyersperform in the course of providing legal services. To varying degrees, they areinvolved in forming legal opinions, drafting legal instruments, and representingclients.These activities are worthy of closer analysis because of their centralimportance to the profession as its only substantive function. The analysis willpresent a generalized view of the phases in each of these activities. Analyzing theactivities in this way will provide the framework necessary to examine the fonds ofWilliam Renwick Riddell, The Legal Profession in Upper Canada in its EarlyPeriods (Toronto: Law Society of Upper Canada, 1916), p. 5.p.6.4°p.22. Riddell notes that, of all practicing lawyers in Canada in 1870,only 4 percent were not banisters and only 2.5 per cent were not attorneys orsolicitors.26a lawyer.Diplomatics identifies six distinct phasesor steps of any procedure, whichwillbe equated with activities in this study.41The first phase is the initiative,whichstarts the mechanism of the procedureor activity. Following this phase istheinquiry, which collects the informationnecessary to evaluate the situation.Thethird phase is consultation, which consists ofadvice and opinions based ontheinformation gathered in the previousstep. The activity then passes intothedeliberation phase, in which final decisions aremade. Deliberation control isthepenultimate phase, in which decisions arereviewed by a supervising entitybeforefinal action is taken. Finally, there isthe execution phase, the point at whichtheaction is made official and carried out.Usually, the first activity in providing legalservices to a client involves thelawyer in forming legal opinions, an elementof the traditional professionsofjurisconsults and solicitors. The initiativephase of this activity occurswhen a clientrealizes a need for advice on a proposedaction that may have legalovertones. Theinquiry phase occurs when the lawyerand the client meet to discuss the client’sproblem, and during subsequentgathering of all the relevant factsof the matter.Although some legal issues could beanswered immediately and would notrequireresearch, the lawyer may review precedentsor speak with other lawyersas part of41This discussion of phases and proceduresis taken from Luciana Duranti,“Diplomatics: New Uses for an Old Science(Part IV),” Archivaria no.31 (Winter1990-1991): 14-15.27the consultative phase. The deliberation phase would occur as the lawyer decideswhich precedents are relevant and prepares a comprehensive legal opinion to guidethe client’s action. The deliberation control phase would not likely occur in the caseof a solo legal practice, but in some law firms a senior partner or committee mightreview the opinion before its presentation to the client. Finally, the lawyer presentsthe legal opinion to the client, resulting in the execution phase of this activity.The second activity within the function of providing legal services is draftinglegal instruments, an activity performed either by solicitors or notaries. The partiesto a matter often require a legally-binding document to formalize the relationshipbetween them. The initiative phase of this activity occurs when the parties realizethe necessity of such a document and request that the lawyer produce it. Theinquiry phase takes place when the client and the lawyer determine which elementsare to be included in the document. As with the activity of forming legal opinions,the consultative phase may result only if the complicated nature of the documentrequires evidence about the state of properties or research into preceding documentsof a similar nature. The deliberation phase occurs as the document is drafted, andthe deliberation control phase is exercised as the client reviews the document todetermine if it is to the client’s satisfaction. The activity reaches the executionphase when the client accepts and signs the document.The final activity of providing legal services is representing clients, an activitycarried out in the past by procurators, advocates, pleaders, solicitors, and barristers.The basis of this activity is a client’s need for the lawyer’s understanding of the28complex procedures and rules of various courtsand regulatory bodies. The initiativephase occurs when a person retains the servicesof a lawyer to represent that personbefore a body with the competence to resolvean issue involving the person. Theinquiry phase consists of the collection of allinformation relevant to the issue,which may include interviews with persons otherthan the client. The consultativephase occurs as the lawyer submits the information to thebody competent toresolve the issue in the according to the proceduresrequired by that body. Thephases of deliberation, which decides the issue at hand,is exercised by thecompetent adjudicating body. The phaseof deliberation control occurs as the clientdecides to appeal the decision.42 The execution phase occurswhen the finaljudgment rendered by the adjudicating body is carried out.Although the three activities of providing legal services havebeen describedin a clear, linear fashion, the distinction between them may bedifficult to ascertainin practice. During the activity of representation,a client may need advice on whataction to take in response to information whicharises during preparation of thecase. Upon receiving advice, a client may want a document created.Additionally,numerous individual documents result fromthe process of gathering the relevantinformation required to represent a client. The point tounderstand in thisdelineation of activities is that, while each activity can be interwovenwith theothers, each activity has a different result.The legal instrument itself is the final42Although the decision to appeal the decision is part of this activity,the actualprocess of appealing the decision is a separate activity of representingthe client.29purpose of the drafting activity, seeing a client through the completion of a legalproceeding is the ultimate result of the representation activity, and the provision ofadvice, either verbally or by documentary means, is the culmination of the activityof forming legal opinions. Elements of other activities, such as drafting a documentduring the representation activity, exist as phases within that activity. Inrepresenting a client, the goal is not to draft a single document but to complete thelegal proceeding, of which the document is only one part. Ultimately, eachdocument can be seen to fit into one phase in one particular activity. Overall, thisexplanation should clarify the distinction between the activities and the phaseswhich are part of those activities.Of course, this analysis of functional activities in terms of these procedureshas avoided any discussion of the actual records generated by the work of lawyers.When developing a model, theory summarizes the generalities of practice.Consequently, the creation of this framework has relied largely on legislation andlegal text books without reverting to an examination of records. Obviously, relyingon these sources has produced an explanation of the work of lawyers which may ormay not be evident in the actual records generated by a lawyer during legalpractice.30CHAPTER TWOTESTING THE FUNCTIONAL MODELThe previous chapter developed a model to explain the functions andactivities of lawyers. Because it is based upon legislation and historical sourcesrather than actual records, the model itself may be considered an idealisticconception of how lawyers work. To counter such criticism, the logical course ofaction is to test the model against an actual body of records. Therefore, this chapterwill apply the model to a fonds of a particular lawyer to determine the model’seffectiveness in predicting what is found in the fonds.This comparison has three aims. First, it will test the workability of thefunctional approach. Second, it will examine individual ifies to indicate the strengthof the relationship between the ideal phases of activities, established in the previouschapter for the primary function of providing legal services, and the actualdocuments which represent them. Third, it will assess the difference between thedocuments preserved in the lawyer’s file and those in the corresponding courtregistry file preserved as part of the public record. This last element is necessaryas a means of assessing the opinion held by many people that all the importantinformation of enduring value pertaining to a legal matter is preserved in the public31record.1The test will take place in three parts. Toascertain whether the entire modelis workable, the series of a fondswill be analyzed in terms of the functionsestablished within the model. Next,to determine the viability of using phasestounderstand the contents of thefile, a representative sample of clientcase files willbe analyzed using the activities and phasesfor the function of providing legalservices, as described in the previous chapter.The final part of the test will be thecomparison of the representative sampleof client files to their counterparts inthepublic record.Before the application of the model,some basic information is necessaryabout the fonds which is to be the basisfor the test. The fonds was created inthecourse of the activities of Thomas GranthamNorris, a lawyer who practiced inBritish Columbia from the 1920s to the1950s. Born in Victoria, British Columbiain 1893, Norris undertook his articles2at Barnard, Robertson and Heisterman,afirm located in that city. After servingin the Canadian military, Norris completedhis articles and was admitted to the BritishColumbia bar in 1919. He firstworkedas a solicitor for the Soldier Settlement Boardin Kelowna and then entered privateSee Brian Bucknall, “The Archivist, theLawyer, the Clients and their Files,”Archivaria no. 33 (Winter 1991-1992):185-186.2Articles of clerkship refer to the one-yearperiod following law schoolduringwhich a law student studies under an experiencedlawyer. Once this period isover,the student then writes bar examinationsto become a member of the law societyof the province in which the exam was written. GeraldGall, The Canadian LegalSystem 3rd ed. (Toronto, 1990),p.187.32practice. He received the designationof Queen’s Counsel in 1.935. He left Kelownathat year in order to practice inVancouver, where he was one of the founders of thefirm of Norris, Cumniing and Bird.He practiced in Vancouver from 1.945 to 1959.Throughout this period, he wasactive in the Law Society of British Columbia,serving as a treasurer, bencher, and, later, lifebencher. He was appointed a judgeof the Supreme Court of BritishColumbia in 1959. During his tenure as a judge,Norris also headed an industrial commission ofinquiry into Great Lakes shipping in1962. He retired fromthe judiciary in 1968 and died in Vancouver in 1976.The Norris fonds, including records pertainingto his personal and careeractivities, was donated to the Special CollectionsDivision of the University of BritishColumbia Library in 1989. The records havebeen arranged by the SpecialCollections Division into six series called professionalifies, judicial subject ifies, casefiles, personal papers, miscellaneous papers, andNorris commission ffles.4 Thefonds represents all spheres of Norris’ life,including his activities as a privateperson, lawyer, judge, and commissioner. In accordancewith the wishes of thedonor, the fonds is open to researcherswithout any restrictions on use or access tothe material. In fact, this is an unusual situationgiven the sensitive nature of the3These biographical elements have been drawn from the Norris fonds andfromG.S.C, “Nos Disparus: The Honourable Thomas GranthamNorris, M.C., Q.C.,”flAdvocate 35 (December-January 1977): 69-70.The two accessions of the Norris fonds were described in a differentmanner.In determining that six series are present, the five seriesdescribed in the secondaccession have been adopted, with the material in the firstaccession placed intothese categories. The sixth series, the Norris commission files,is the only seriesfrom the first accession not found in the secondaccession.33material, and such access has made the following analysis possible. If other fondshad been available for study, more than this one could have been chosen for the testof the model.The first step in applying the model to the fonds is to eliminate from theexamination that material for which the model was not designed. For example,records pertaining to Norris’ personal life, as documented in the series of personaland miscellaneous papers, were excluded. The series of judicial and commissionfiles resulting from his juridical roles as judge and commissioner were also set asideas they document activities outside the sphere of lawyer’s work. Although thisfonds is clearly that of an individual who carried out a variety of personal activitiesand held more than one public office, only the records of Norris’ practice of law areof concern to this study.Therefore, the two remaining series, professional files and case files, are theobject of the application of the model to the Norris fonds. The series of professionalfiles, which relate to the conduct of his legal career, has distinct numeric file codes.The series of case files has no ifie codes but contains material similar to that in theother series. Therefore, it is these two series which will be analyzed in terms of thefunctional model and phases of procedure. The first test of the model is to ascertainthe extent to which functions and activities of the model are represented bydocuments within the two series. All three functions are represented in the twoseries, but the professional files series contains documents arising from functions ofmaintaining a legal practice, providing legal services and contributing to the34profession. The file coding system used by Norris indicates that he did notdistinguish records in these functional terms. It is not know why thefiles in thecase file series were not coded, although this is undoubtedly why they were treatedas a separate series by Special Collections.Some activities predicted in the model are not apparent oroccur rarely indocuments in the fonds. Although Norris was involved with at least one partnershipduring his legal career, the activity of maintaining a partnership was not representedby any of the records. In addition, there were very few recordspertaining to theadministration of finances within the firm, such as financial statementsor auditedaccounts.5 The absence of records resulting from these activities likelyoccurredbecause they were retained by the law firm. That Norris considered other recordswhich were also generated by the law firm in which he worked to be hispropertyindicates that even lawyers often have difficulty determining what is theirs and whatbelongs to the finn, the tradition being that the lawyer may keep custody and,presumably from this case, determine the disposition of the files of thecases forwhich he or she provided services to client.The second test of the model consisted of choosing specific ifieswithin therecords to see what documents exist for the phases in the activities of providinglegal services. Although using diplomatics and the concept of phasesprovides anideal view of the way a procedure should unfold, the question remains as towhatof British Columbia, Special Collections Division, Thomas GranthamNorris fonds, box 17, file 4 (original file 927). This file contains correspondencepertaining to Norris’ purchase of law books.35phases are actually documented within the files.This comparison between the idealphases and the actual files will attempt to determinethe validity of using phases toexplain the procedures and thetypes of documents which exist for the phases.Because of the mixture of files representing thevarious functions of Norris’legal practice, the first step wasto segregate case ifies in the professional files seriesfrom all other files within that series and add them tothose files found within thecase files series, resulting in 159 case files.This process provides the correctpopulation necessary to study the functionof providing legal services. To avoidbias, a scientific method was used to determine thesample of files which would beused in this examination. First, each clientcase file segregated from the legalprofession ifies series was assigned a number.After determining the total numberof client case files in the series, a formula wasused to calculate the size of a sampleof files which would be representative ofthe series with a confidence level of +/-15%.6Having calculated the proper sample size, a random number tablewasconsulted to determine which of the numbered client case ifieswould be chosen torepresent all of the files in the series.7 Within thechosen ifies, each document wasN6formula n 1 +Ne2was used to calculate the samplesize, where n=samplesize, N=population size and e=sample error. A sampling error of+/- 5% is mostcommon, but a larger error of +/- 15% wastolerated because of the exploratorynature of this study and the need for baseline data.The sample consisted of the following files (by code): 288, 297, 377, 562, 775,777, 822, 835, 911, 917, 929, 943, 952, 973,1004, 1007, 1020, 1027, 1030,1031, 1054, 1069, 1079, 1081, 1097-E, 1109, 1155, 1163, 1195, 1246,1285,1361, 1378. One case ifie was chosen whichhad no number originally and wasnumbered 99. A second case ifie consisting of 3 separate numbers (963, 964, 965)36counted, analyzed and categorized as to theappropriate phase of activity it fellunder. Any documents which could not beassigned a particular phase weredescribed as unknown or other. The resultsof the analysis are summarized in tableone on page thirty-seven.In terms of determining which procedurespredicted by the model areaccurately reflected within the files, the studyprovided a number of interestinginsights. Perhaps the most striking findingis the high percentage of documentswhich fit into the diplomatic analysis. Only fifty-eight,or approximately about twopercent, of the total documents in the files could notreadily be placed into onephase or another. These documents wereclassified as “other”. Documents in theexecution phase include many which were properly part ofthe financial activitiesof Norris’ practice. Although they strictly do notfall into the execution, theyrepresent actions to close the matter,and so are put together in thisfinal phase.Perhaps predictably, the inquiry phase is most frequently represented. Itis thephase during which lawyers are gathering information and evidenceto constructtheir case. The relatively small number of documents in theconsultative phaseindicates that few copies of court registry or other public records werepresent inthe files. Documents bearing on the phases of deliberation and deliberationcontrolformed a relatively small portion of the file, probably because thesephases arelargely out of the control of the lawyer and are the domainof the client, whoapproves drafts of documents, or the adjudicator of thedispute, who makes finalcovering one legal action was counted as a single case.37TABLE ONE: PHASE/DOCUMENTCOMPARISONPHASE TOTALDOCUMENTS AVERAGE #*PERCENT OF- PER FILEFILEEntire procedure 3,975 114100%Initiative 200 65%Inquiry 1,79651. 45%Consultative 45213 11%Deliberation 4001.1. 10%Deliberation Control 108 33%Execution 96128 24%Unknown/Other58 22%*Percentages are rounded off.38decisions on the facts presented. Finally, the initiative phase forms a very smallportion of the file. This fact is to be expected, as it would only take a singledocument or a verbal request to authorize a lawyer to begin a legal procedure.Another facet of examining the case files was to examine the actions foundwithin them, as defined by the model and represented by the documents. In thethirty-five case files which comprised the representative sample, there was a totalof sixty-six actions contained within them, approximately two actions in each file.The model had predicted the activities of forming a legal opinion, drafting legaldocuments and representing clients in legal procedures, but the proportions of theseactions found within the files was surprising. The overwhelming majority of theseactions were representing clients in legal procedures, comprising fifty-three of thesixty-six actions, or over eighty percent of the total actions. The activity of forminga legal opinion occurred in .the records on a less frequent basis, with only ten ofsixty-six actions, or only fifteen percent of all actions. The activity of drafting alegal document was represented by only three of the sixty-six actions, totallingapproximately five percent of actions.There were two other aspects of the case files which are worthy of note.First, the number of documents in the file ranged from a low of four to a high ofover six hundred, indicating that all case files are not necessarily bulky andcumbersome. Second, the completeness and comprehensiveness of the file variedfrom files containing hardly enough documents to determine a procedure to fileswith a number of actions that are documented comprehensively from the initiative39to execution phase. Overall, the model was relatively successful in establishing thephases of procedures and identifying documents within these phases. Althoughthere were examples of forming legal opinions and drafting legal documents, therewas an overwhelming preponderance of the activity of representing clients in somelegal action. This breakdown is a reflection of the legal needs of Norris’ clienteleat the time. In order to fully test the effectiveness of this part of the model, similarresearch on other fonds must be conducted.The final test of the model is a comparison of the lawyer’s file to thatmaintained by the court registry. In defending the destruction of their case files,lawyers often argue that all the important information of enduring value pertainingto an action has been preserved at the registry of the court which heard the case,making their version of the file redundant.8 The remainder of this chapter willconsist of testing this claim by comparing the sample of case files in the Norris fondschosen during the previous test against their counterparts in the public record.Of the thirty-five case files selected in the random sample, it was determinedthat only seventeen cases, approximately fifty percent, had a counterpart file createdin the public domain. This determination was based upon whether documents hadidentifying file codes or cause numbers which were recognizable as being generatedby a court registry. The eighteen files which contained documents that exhibitedno trace of file codes were considered to have no counterpart in the public domain,because there is virtually no other means to determine where the corresponding file8See footnote #1.40may be located.Since all the court files in question are over forty years old, custody of theifies has passed from the court registries to the British Columbia Archives andRecords Service (BCARS). Before the results of the research at BCARS can bediscussed, it is necessary to examine the archival appraisal criteria developed byBCARS for court registries around the province and how it has affected thepreservation of records at court registries.The Public Documents Committee, which administers the Public DocumentsDisposal Act for the Legislative Assembly of British Columbia, first examined theissue of the archival appraisal of the records of a court registry in 1962, when theRegistrar of the Supreme and County Court registries in Rossland sought permissionto destroy various records dating back to the 1890s.9 The decision of theCommittee was to allow the destruction of all supreme and county court case fileswhich had been inactive for over forty years, and to allow the destructionofdiscontinued, dismissed or certain other cases after ten years. The Committeedetermined that all orders, judgments, decrees and books of record were tobepreserved and transferred to the Provincial Archives of British Columbia afterfortyyears had elapsed. In subsequent records schedules developed in the late1970s,this appraisal decision was modified slightly so that the Provincial ArchivescouldBritish Columbia. Public Documents Committee. Approved application fordestruction of County Court of West Kootenay records, 12 March 1962. Photocopyin possession of Catherine Henderson, Court Records Archivist, BCARS.41perform selective retention of various court recordsseries, including case files.’°In April 1993, the Operational Records ClassificationSystem (ORCS) for theCourt Services Branch of the Ministryof Attorney-General, which includes the courtregistries, was completed by BCARS and approvedby the Chief Justice of BritishColumbia.” Although this ORCS incorporatesprevious appraisal decisions, the newsystem also redefines what BCARS will preservefrom court registries. Under thisORCS, orders, reasons for judgement, probatecase files, wills and Court of Appealcase files will be retained in full by BCARS fortheir legal and historical value.Selective retention will be performedon any remaining case files openedprior to1950. For cases opened after 1950, the Prince RupertRegistry will be retained infull, as the cases heard there are deemedto cover all facets of the law and amountto a one percent sample of all case files openedin the province. In addition, notablecases from the Supreme Court of British Columbiawill be preserved on a selectivebasis, with a law librarian making thedetermination as to what cases were notable.For example, nine legal actions conductedin British Columbia in 1992 were definedas notable, and their case files at the courtregistry have been marked for permanentFor an example of a court records scheduleof this era, see Daisy McColl,“AnAdministrative History of the Supreme Courtof British Columbia with ParticularReference to the Vancouver Registry:Its Civil Records, their Composition,and theirSelection for Preservation” (UnpublishedM.A.S. thesis, Universityof BritishColumbia, 1986), Appendix B.“British Columbia Archives and RecordsService, Operational RecordsClassification System: Court ServicesBranch Schedule 100152 (Victoria,1993),form ARS 008, page 2.42preservation.12Given these appraisal decisions, theresults of a comparison between theNorris fonds and the public record are not surprising.Of the seventeen files,comprising fifty percent of the original sample,which could conceivably have hada ifie in the public domain, only eightfiles, or twenty-five percent of the originalsample, had a corresponding court registryfile which had been selected by BCARS.These files were then examined to determine theamount of duplication betweenthem and the lawyer’s file. The results are summarizedin table two on page forty-three.On the whole, the consultative phase ofthe activities formed a relativelysmall portion of the documents containedwithin the file. In addition,thedocuments which are generated withinthe consultative phase and preserved inthecourt registry are necessarily precise summariesof various legal points and decisionsas befits the context of their creation.The fact remains that, out of a total of nearlyfour thousand documents generatedby the lawyer’s activities, only140 werepermanently retained within the publicdomain.Obviously, simple numerics andthe destruction of almost all case filesinBritish Columbia do not providethe entire answer to the debate ofwhatinformation is preserved inthe public record. If a researcher desiresto reconstructthe outcome of a court case, one could argue thatall that is required is the12Conversation with CatherineHenderson, Court Records Archivist,BCARS,June 26, 1993.43TABLE TWO: COMPARISON TO PUBLICRECORDLAWYER’S FILE COURT REGISTRYFILE DOCUMENTSINCOMMON2167 514 38050 10454 6449 10822 24114 205366 251444information contained within the ordersand judgments which BCARS alreadypreserves, as well as the bench book ofthe judge, should the archives have receivedit. However, the judge’s bench books, whichare currently under the personaldisposition authority of judges, may neverreach BCARS. Although the appraisaldecision formulated by BCARS makessense in terms of preserving the decisionsandprecedents established by British Columbia’scourts, it makes reconstructionof anindividual case, from start to finish, particularlydifficult. Ultimately, as the figuresin table two demonstrate, the lawyer’sfile is the most complete version ofwhattranspired between a lawyer anda client. Although all the phases of theproceduremay not be as well documented asothers, a lawyer’s ifie is worthy ofarchivalappraisal because it documents the perspectiveof the lawyer-client relationshipinregard to the procedure at hand. Thepreservation of the documents showingtheprocess of the legal action is of as muchimportance as the preservationof thosedocuments representing the outcomeof the action. Indeed,the documentsgenerated by the courts serve its needsand arise solely from its role inadjudicatingdisputes. The court records providethe public record of that disputeand very littleof what transpired between its beginningand its arrival in the publiclegal system.Clearly, the research of this chapter hasshown that the functional modeloflawyer’s work can be appliedto analyze an actual fonds. It hasalso demonstratedthat lawyers files contain unique informationnot documented elsewhere.Therefore,with this understanding of the natureof lawyers’ records, one can nowaddress thequestion of archival appraisalof the records of lawyers.45CHAPTER THREEARCHIVAL APPRAISALAND ACCESS TOTHE RECORDSOF LAWYERSAppraisal is themost importantand complex dutyundertaken bythearchivist. The processof appraisal is essentiallyan evaluation of recordsfor thepurpose of determiningwhich are worthyof continuing preservation.The result ofappraisal buildsthe documentary heritageof society, a vital partof the imageof ourcivilization which willbe passed on tofuture generations.Using the functionalanalysis establishedin the first chapterand the statisticalexamination compiledinthe second chapter,this chapter willfocus first on appraisalfor acquisition,toilluminate the problemsfaced by archivesin acquiring the recordsof lawyersandmaking themavailableto researchers.The chapter willconclude withanexamination of appraisalfor selectionof documents withinfonds.The concept ofarchival appraisalimplies that theprocess of evaluationwillexclude some documentsfrom continuingpreservation.These excludedmaterialsare not essentialto the documentaryheritage and aresubsequentlydestroyed. Thesanctioned destructionof archival materialcan be criticizedon severalfronts. Forinstance, for historiansand lawyers,any document couldpotentially provideevidence relevantto their research.For archivists, appraisalfor selectionis aconundrum becausethe destructionof material eliminatesthe essential archival46bond among documents in a fonds by destroying evidence of their interrelationships.Although the result of appraisal appears to be antithetical to preservation ofan adequate memory of society, the continuing preservation of all the documentscreated by every records creator would soon overwhelm us. Even if storage spaceexisted, the mass of recorded information would prove overwhelming,indecipherable and, to some measure, redundant. Therefore, the duty of thearchivist in the appraisal process is to preserve a residue of records which accountfor societal activities and accomplishments. Selection not only preserves thedocuments which a given society views as important to its continuing progress butalso illustrates the opinions and perspectives of the society which chose to preservethose documents. Although the result of appraisal inevitably provides a lesscomprehensive view of society, it is also true that “archives constitute the memoryof society and memory must be selective in order to be functional.”1There are two forms of archival appraisal. One form is appraisal foracquisition, in which an archival repository determines whether or not to add aparticular fonds to its holdings. In this process of appraisal, the archives assessesthe importance and completeness of the fonds and its relevance to the acquisitionpolicy of the archives. Other questions, such as conservation problems, copyrightissues and access concerns, are also addressed at this point. The actual acquisitionof the fonds will take place if the archives is satisfied not only that the archivalVictoria Louise Blinkhom, “The Records of Visual Artists: Appraising forAcquisition and Selection” (Unpublished M.A.S. thesis, University of BritishColumbia, May 1988),p. 31.47material falls within the jurisdiction of its acquisition policy but also that anyproblems inherent in the material are reasonably manageable by the archives. Ifneither of these conditions is satisfied, the archives likely will not acquire the fonds.Although another archives might acquire it, the fonds may not ultimately bepreserved in any archival repository. Although this portion of society’s documentaryheritage would be lost, the decision not to preserve a particular fonds is anexpression of society’s values at that time and, on those terms, cannot be faulted bya later age.The second form of appraisal is appraisal for selection, which preserves aportion of the documents within a fonds acquired by an archival repository. Theprocess of appraisal for selection begins with an analysis of records to determinetheir context of creation and use. With this understanding of the context, thearchivist can then determine the necessity of permanently preserving the records.The final product of this analysis is an appraisal decision which has traditionallytried to assess the various needs, often expressed as values, that the records mayserve.2 T.R. Schellenberg categorizes these values as being either primary orsecondary. Primary value refers to the capacity of records to serve the continuingadministrative, financial and legal needs of the records creator. The other value isdescribed as secondary value, which refers to the capacity of records to serve theneeds of persons other than the creating organization. In Schellenberg’s scheme,2T.R. Schellenberg, “The Appraisal of Modem Public Records,” in A ModemArchives Reader: Basic Readings on Archival Theory and Practice, ed. Maygene F.Daniels and Timothy Walch (Washington D.C., 1984), p. 57-7048secondary value is divided into two components consisting of evidential value,which refers to the capacity of the records to provide information about the creator’sactivities, and informational value, the capacity of the records to provideinformation about persons, places, events or things about which they speak. Therehas been relatively little literature on the subject of appraisal of lawyers’ recordsuntil recent years. The actual practice of appraisal would appear to be haphazard.According to a survey of Ontario law firms conducted between 1984 and 1985, themost common appraisal practice was the complete destruction of records, sightunseen, by the lawyer, the law firm or an archivist.3 Few archives have beeninvolved in the acquisition of lawyers’ records, and those archives which have addedsuch records to their holdings immediately become involved in myriad accessproblems which have yet to be resolved.Discussions of various issues pertaining to the retention and destruction oflawyer’s records have appeared in records management, archival, and legalpublications. Although these studies address a number of important appraisal andethical concerns, few of them have addressed all the issues. In addition, there hasbeen a lack of quantitative information about the nature of lawyers’ records andtheir relationship to public court documents. With the information resulting fromthe study of the Norris fonds, the remainder of this chapter will examine firstappraisal for acquisition and then appraisal for selection.Roy Schaeffer, “The Osgoode Society Survey of Private Legal Records inOntario,” Archivaria no. 24 (Summer 1987): 183.49Although an archival repository may be interested in acquiring the recordsof a lawyer, there are several impedimentswhich prevent the archives fromacquiring complete legal control over the entire fonds. Forcertain records series,there are no significant problems of accessassociated with their acquisition.Lawyer’s records generated under the functions of maintaining a legal practice andcontributing to the profession could be placed in an archives without anyrestrictions other than those imposed by the donors themselves. These records aresimply business and personal records much like those created by a personin anyother profession. The problem with a lawyer’s fonds arises with the case filesgenerated as a result of the function of providing legal services. Normally, solicitor-client privilege prevents the transfer of these records to any archives.The concept of solicitor-client privilege consists of three separate parts. Thefirst and most familiar component is the concept of privileged communicationbetween solicitor and client, one of the oldest traditions in the history of law. InRoman times, an imperial decree stated that trial lawyers were not capable oftestifying for or against their clients during the process of a trial.4 Testimony forthe client would obviously be biased, and acting as a witness against one’s ownclient “would brand the attorney as an unsavoury individual.”5This tradition of privileged communication also exists in English common4John William Gergacz, Attorney-Corporate Client Privilege (New York, 1987),p. 1-4.Ibid.50law. The first cases documenting this concept occurred in Elizabethan times andwere based again upon the honour of the attorney.The oath and honour of the British trial attorney as a gentlemanprovided the basis for the privilege, for gentlemen were bound bytheir word and it was thereby a point of honour to keep clientconfidences.6Since the eighteenth century, the concept of privileged communication hasundergone a gradual refinement. At first, the privilege belonged to the lawyer andconcerned matters related “only from the beginning of the litigation in connectionwith which the communication was made and for its purposes only.”7 Through aseries of court cases, this privilege grew to include communication made either priorto litigation or with the intent to pursue future litigation. By the late nineteenthcentury, privilege had been extended to all communications “made during anyconsultation for legal advice.”8 In addition to this expansion of privilege, theownership of the privilege shifted to the client, with the lawyer claiming it on behalfof the client. Since the privilege belongs to the client, “it cannot be breachedwithout the express consent of the client.”9Because of its roots in British common law, a similar situation exists in6Ibid.R.A. Kasting, “Recent Developments in the Canadian Law of Solicitor-ClientPrivilege,” McGill Law Journal 24 (1978): 116.Ibid.Richard Kiumpenhouwer, “Another Look at Legal and Social Ethics of ArchivalAccess to Lawyers’ Records,” (Unpublished paper presented at ACA Conference,1990),p.2.51Canada. A Canadian court ruling established astandard, concise definition ofprivileged communications:Communications by a person to his solicitor or counsel in any capacityare privileged and. . . neither the solicitor nor the client can becompelled to disclose the content of the communications wheretheyare intended to be confidential.’°The essential premise behind solicitor-client privilege isthat the clients will revealinformation relevant to their legal needs more readily if that information isheld inconfidence between the lawyer and client. The privilege focuseson thecommunication of the information; if the information is freely availableelsewhereand is subsequently discovered, privilege cannot be claimed justbecause theinformation was conveyed to a lawyer.” In addition, the privilege lasts beyondthedeath of the client and may be claimed by the client’s lawyer, heirs,next of kin, orany other successors to the client.’2With the evolution of privileged communications, several conditions havebeen identified which must exist in order for communications tobe consideredIbid.‘This discussion is largely based upon Edna S. Epstein and Michael M. Martin,The Attorney Client Privilege and the Work-Product Doctrine(Chicago, 1989),p.14-15.12Ronald D. Manes and Michael P. Silver, Solicitor-Client Privilege in CanadianLaw (Toronto, 1993),p.177. According to Doug Whyte, “The Acquisition ofLawyers’ Private Papers”, Archivaria no. 18 (Summer 1984): 147, the thenPublicArchives of Canada was considering contacting the literary executors ofclientswhose files were among the Diefenbaker papers in response to this situation.52privileged.13 A communication must be made between privileged persons inconfidence for the purpose of seeking, obtaining or providing legal assistance. Acommunication is considered to be in any form, written, oral or even body language.Privileged persons include the lawyer, the client, the employees of the lawyer, andany communicating agents, such as translators or typists. The communication mustrelate to and be necessary to a client requesting the legal advice of the lawyer;privilege may extend to some but not all non-legal undertakings.While preconditions exist for the existence of the privilege, there are alsoseveral ways in which to test whether privileged communications have lost theirconfidential status.14 The client may waive the privilege of his or her own accord.If the communication is revealed in court or to other people outside the privilegedrelationship, confidentiality is also removed. If the lawyer or client uses a privilegeddocument in court to recall incidents, this document is no longer confidential. Inall these instances, the confidentiality of that communication is permanently revokedwhen the privileged nature is first removed, and it cannot be reclaimed. Otherexceptions to the rule of privileged communications, which permit the lawyer tobreach privilege in certain instances, include the disclosure of items involving alawsuit between shareholders and a corporation; a future or ongoing crime; or alawyer’s self-defense in malpractice, disbarment or criminal proceedings.13This discussion is largely based upon Epstein and Martin, The Attorney ClientPrivilege, p. 13-58.14This information is taken from Epstein and Martin, The Attorney ClientPrivilege, p. 59-80.53While the concept of privileged communications is a major component ofsolicitor-client privilege, the second part is known as work-product doctrine orlitigation privilege. This provision asserts that a lawyer must have some privacy interms of his preparation for the case. Therefore, material collected and prepared bythe lawyer for litigation is protected from discovery or examination by the opposingside.’5 This concept has been recognized in Anglo-Canadian law since the 1880s,and the British Columbia Court of Appeal recently determined “that there [was] nodistinction between the solictor-client privilege and the lawyer’s work product.”16The third and last aspect to solicitor-client privilege is the professional ethicsof the legal profession. Bar associations and law societies maintain the principlethat lawyers will not reveal confidential information received from their clients. Inaddition to forming the basis of a proper ethical code, this principle also appears tobe a vestige of the situation when the privilege belonged to and concerned thehonour of the attorney. This professional commitment is nonetheless a stronglyheld belief within the legal profession. Punishment for lawyers who revealconfidential communications is severe and may include professional disciplinaryaction, disbarment or a civil suit from the client and any others involved in thedisclosure of the information.’7Solicitordient privilege would appear to make providing access to lawyers’Epstein and Martin, The Attorney Client Privilege, p. 102.16Manes and Silver, Solicitor-Client Privilege in Canadian Law,p.107-108.17Klumpenhouwer, “Another Look”,p.3.54records in an archives virtually impossible. Lawyers clearly consider the fact that“all communications between the lawyer and a client must never be disclosed as thefoundation upon which the entire legal system operates.”18 As Klumpenhouwernotes, “the professional rules seem ironclad; the legal consequences ofcontravention, ominous; the weight of tradition and corporate culture supportingthem, impressive.”19 It would appear that archives and the researchers they servewould have very little chance of acquiring or gaining access to lawyers’ case files.There is one final aspect of the problem of case files which must beconsidered. Aside from the concept of solicitor-client privilege and its ethicalconcerns, it must be recognized that an individual has a right to privacy, and theserights must be protected. Some legal actions are among the most personal andwrenching emotional events that people may experience, and the persons involvedmay not want others to know of these experiences. The logical extension of thisargument is that “the right to privacy supersedes the scholar’s freedom of inquiry,”20implying that archives should not invade this area of confidentiality. MacNeil statesthat “our acceptance of limitations on the pursuit of knowledge, in the interest ofa greater common good, is what distinguishes us, finally, as moral beings.”2’Given18p.2.19Ibid., p. 1.20Heather MacNeil, “In Search of the Common Good: The Ethics of DisclosingPersonal Information Held in Public Archives,” (Unpublished M.A.S. thesis, U.B.C.,1987), p. iii.21jjj4.,p.161.55the opinions of the legal profession regarding the fundamental nature of solicitor-client privilege, many lawyers and legal professional associations would agree withsuch a statement.Theoretically, no archives in Canada should have lawyer’s case files amongits holdings, as this goes against the basic principles of protecting privilegedcommunications. According to an informal survey, lawyers’ records are found in atleast nineteen archives in Canada.22 Whether these records were acquired withoutknowledge of the restrictions or in spite of them, the fact is they have beenacquired. These archives have each developed policies towards the issues of accessto these materials. By categorizing and examining the approaches taken by thesearchives, there may be a means of balancing the concerns of lawyers and theirclients with the needs of researchers.The first approach is to acquire the fonds of lawyers but not to make therecords available to researchers for an extended but undetermined period of time.In that way, the records are preserved without immediately breaching theconfidential nature of the material. For example, access to case ifies held at the LawSociety of British Columbia Archives and the Glenbow Institute is closed toresearchers. For now, this seems to be a practical measure imposed until the matterof access is resolved or can be resolved at a later date. In the long term, however,this measure could not be justified if the material might never be made accessible.The function of an archives is not to act as a records storage centre, and if recordsWhyte, “The Acquisition of Lawyers’ Private Papers”,p.146.56become part of the holdings of an archival repository, there must be a definitemeans by which that material eventually becomes accessible.The second approach towards the problem of confidentiality is to overlookthe ethical issues posed by providing access to the records. In the instance of theNorris fonds at the University of British Columbia, all records are accessible withoutrestriction, a condition imposed by the donor of the records. Similarly, recordsdating from the 1950s of Blake and Redden, a British law firm which handledCanadian legal cases in Britain, are available without restriction at the NationalArchives of Canada. Among other things, this approach apparently does not takeinto consideration the privacy concerns of the client. Given the requirement thatclients or their representatives must waive the privilege before privilegedcommunications can be revealed, archival institutions permitting access to case filesare party to breaking an agreement between a lawyer and a client regarding therevelation of information.While extreme measures are clearly not acceptable, solutions to the problemsof confidentiality and privacy are conceivable. At the Public Archives of NovaScotia, an agreement exists between the archives and a Nova Scotia law firm todeposit client ifies which may eventually be made accessible.24 The agreement,made in 1957, ensured that ifies would be restricted for at least fifty years, with23and Redden fonds, MG 2811135, Manuscript Division, National Archivesof Canada.24Whyte, “The Acquisition of Lawyers’ Private Papers”, p. 150.57perhaps further restrictions imposed for moresensitive materials. Another methodof providing access to case files was developedby the University of Saskatchewanregarding the papers of Canadian PrimeMinister John Diefenbaker. Afterdetermining that immediate full access to thepapers dealing with Diefenbaker’slegal practice could not be granted, the archivescreated a list of documents comingunder privilege likely to be found in the casefiles. The case files were examinedaccording to these criteria, and the privileged documents wereremoved and placedin secure storage. Confidential informationwas also deleted from copies ofmicroforms of the Diefenbaker papers.25 Evenwith these provisions, researchersare required to sign a form giving the undertaking notto disclose any personalidentifiers in published works. According to Whyte, “the benefits ofthis solutionallow the original documents and unaltered microfilm to be reintroduced atsomefuture date if circumstances change.”26 However, suchintensive and costly workcan only be undertaken and justified for the fonds of very importantindividuals,perhaps only for the papers of prime ministersor eminent members of the legalprofession. While the entire process of microfilming and examinationof voluminousifies is beyond the means of many archives, the practice of removingidentifiers and25There may be a similar solution to the problem of solicitor-clientprivilege.In providing access, the archivist of the law society could actas an extension of thelawyer’s office. As well, the use of automation can eliminate identifiersfrom therecords. Although solicitor-client privilege would be preservedunder thisarrangement, some lawyers would argue that any access other than thatof thelawyer and his staff would destroy that confidentiality.26Whyte, “The Acquisition of Lawyers’ Private Papers”, p. 148.58striking agreements to preserve confidentiality may be the main feature of a solutionto the problems of access. However, some lawyers may still view this as a breachof privilege, since the information is still revealed to persons outside the privilegedrelationship. While the solution to the problem presented by Diefenbaker papersmay represent a victory for access, it does little, in the long run, to resolve thesituation. The legal profession as a whole will have to recognize such measures assatisfactory, or otherwise contribute to recognizing a solution in conjunction witharchival institutions.Throughout these approaches to providing access to lawyers’ papers is thenotion that, after time, the records may be made available. Other confidentialarchival records, such as census returns, are made available long after their creation,in some cases nearly a century after their creation. Archivists have determined that,despite the confidential and personal nature of such records, the passage of time andthe research potential of the records justify the retention and eventual removal ofaccess restrictions to the records. A similar argument could be made for lawyers’records. The eventual death of both lawyer and client would, at a minimum level,satisfy that the communication had remained privileged during the lifetime of bothparties to the communication. This reasoning is at the basis of a bill drafted inOntario which would have allowed case files to be opened a century after the mostrecent document in the file.27 This approach is similar to that of the British27This draft bill was produced for the Osgoode Society, a legal history societyin Ontario, for the purposes of internal discussion rather than for the OntarioLegislature. Christine J.N. Kates, “The Osgoode Society: Preservation of Legal59Records Association, which encourages the deposit of solicitors’ records in archivesin Britain. Under this program, waivers are sought from clients who arestill living,butthere is, however, an assumption that where the file is at least onehundred years old, there is little or no need for concern regardingprivacy or privilege?8Apparently, there have been no reports from British archives who have receivedmaterial under this assumption. Overall, this approach balances the concerns of theclients and lawyers with the needs of researchers. The revelation of the innerworkings of a legal matter completed a century earlier would not seem to endangerthe foundations of the legal system of today. If the British model were followed,only the earliest records of some active Canadian law finns would be made availableat the present time.29 If complete access at a point far removed from the actionstill made lawyers uneasy, archivists and lawyers can formulate research agreementswhich permit access to the records under specified conditions, which would protectthe privacy of clients.There are objections to this compromise. Obviously, the clients whose fileswould become open to researchers had, at the time the file was created, noknowledge that their files would become accessible. The legal profession would nodoubt be more comfortable if it could obtain waivers for all client files beforeRecords, Law Society of Upper Canada Gazette 21. (1.987): 61..62.29According to The Business in Vancouver Book of Lists 1.992 (Vancouver,1992), p. 18, there are four law firms in British Columbia whose establishmentpredates 1894.60releasing them for research purposes, but that solution is impractical and unlikelyto succeed. Asking for such a waiver wouldimply that the lawyer was promisingnot to reveal confidential information in one instance while ensuringits eventualdisclosure in the future. From this point of view, one can understand the legalprofession’s resistance to archival accessibility of case files.From the lawyer’s point of view, complete destruction of all case files is theonly option. According to Schellenberg, the destruction of everything created by anorganization is 11a drastic course [appealing] only to the nihilist, who sees no goodin social institutions or in the records pertaining to them.”3° However, lawyershave been assuming that clients would prefer their privacy, and that destruction ofthe file is the easiest and best means of preserving that privacy. In a number ofinstances, the clients may want the files preserved as an illustration of the way thelegal system has treated them. The National Archives of Canada has acquired thecase ifies of a lawyer involved in the claims of the descendants of Japanese-Canadians interned in the Second World War.31 Although access to them is nowrestricted, the ifies will eventually provide an insight into an important episode inthe history of civil rights in Canada and will complement the records of allgovernment departments involved in the matter. For all their talk of protecting therights of clients by destroying case files, lawyers, who are ethically required toSchellenberg, “The Appraisal of Modern Public Records”,p.57.3°The Saul Mark Cherniak fonds (MG 30 E 266) contains correspondence andcase files pertaining to Chemiak’s role in assisting Japanese-Canadians seekcompensation for their internment during the Second World War.61protect persons’ rights, should consider the recordof carrying out that responsibilityto be important to the social memory.Despite the complexity of the issues involved, someconclusions can bedistilled from the various arguments. Given theirsocial role, archivists shouldpreserve a record of the activity of the legalprofession as part of society’sdocumentary heritage. This documentary heritage eithermust include the case fileswhich naturally result from the lawyer’s workor become entirely biased by theirremoval. Indeed, members of the legal profession haverecognized that thepreservation of legal records in general is essential tostudying the development ofthe profession and its impact on society.32 Althoughall personal identifiers mightbe removed from the ifie to make itavailable without jeopardizing theconfidentiality of the file, this procedure would destroy the linkages betweenanyexisting public record and the case ifie. The best means to make the caseifiesavailable is to limit the life of the privilege to a recognized period ofultimateliability or to the lives of the lawyer and client, a rule which could be madethroughlegislative amendments.33 Essentially,the biggest concern of the legal profession with limitations to the32Consultative Group on Research and Education in Law, Law and Learning:Report to the Social Sciences and Humanities Research Council of Canada(Ottawa,1983), p. 159.This approach, attempted in Ontario, was also suggested in British Columbiaby the Law Society of British Columbia. According to the Statutesof BritishColumbia (Victoria, 1988), chapter 25, section 25 (k) of the Legal ProfessionsActempowers the benchers of the society to make rules for access to lawyers’recordsin archives. Their conclusion was that legislative actionwas necessary.62privilege relates to procedures for obtaining and using evidence, andthe effects these would have on the conduct of legalservices at thetime when the evidence was still directly relevant.This statement clearly indicates that the most importantpurpose of solicitor-clientprivilege relates to protecting the client during the legal action inprogress. Thereis no consideration of the ultimate fate of theseprivileged documents.Kiumpenhouwer posits thatwhen used in a context unrelated to the original legal matter, andafter a considerable lapse of time, the privilege is, for all intents andpurposes, no longer relevant.35After a century, the only threat posed by the release of privileged documentsis achallenge to established or preconceived notions of history and thelawyer’s role insociety.Once acquired by an archival repository, the records of the legalpracticewould likely be subject to appraisal for selection, which woulddetermine what partsof the fonds would be preserved permanently. Thearchives would examine therecords in terms of their primary and secondary values. An examination ofeachfunction and the records likely to result from it show that different values exist foreach function.For the function of maintaining a legal practice, the recordshave enduringprimary and secondary values. Law society certificates, minutes of meetings,partnership agreements, incorporation documents, and financialstatements are someKlumpenhouwer, “Another Look”,p.8.Ibid., p.9.63of the records series whichhave continuing value interms of ensuring theaccountabifity of the lawyeror law firm. In the event thatquestions aroseconcerning any aspect of thestatus of the lawyer or the law firm, theserecordswould provide definitive answersto those questions. Conversely,certain recordsseries also generated by thisfunction have a short-term primaryvalue. Theserecords series can include cancelledcheques, purchase orders, and files pertainingto routine office administration. Asthese records form part of the activitiesof anybusiness, they are subject to certainlegal requirements as to their retention.Theserecords have a definite primary valueto the legal practice, but once this valuehasexpired, they have little or nosecondary value. As noted by DonaldSkupsky, theserecords can be handled by a traditionalrecords management program.36 Becausethese records facilitateother activities, it is likely that theinformation issummarized in other, more valuablerecords series. Consequently, these moremundane records can bedestroyed without a significant loss ofinformation.The secondary values of therecords of the maintaining function is low.These records exist only as an expressionof the activities of the individual ororganization and contain little informationabout individuals, organizations orevents apart from the lawyer orthe law firm. Although low in terms ofinformational value, the strengthof the evidential value inherent in the records36Donald J. Skupsky, “Records RetentionRequirements for Law Firms and LegalDepartments,” Records ManagementQuarterly 25, no. 2 (April 1991): 36. SeeDeLloyd J. Guth, “Retention and Dispositionof Client Files: Guidelines forLawyers,” The Advocate 46 (1988): 240-242for retention guidelines.64ensures that they will be preserved.The next function, contributing to the profession, also has strong primary andsecondary values. The records resulting from the activities within this functionillustrate the development of an individual’s personal philosophy, the generalprogress of legal thought, and the changes occurring within the legal community.These records complement those of professional organizations. In addition, therecords provide a more complete picture of the legal profession by preserving thepositions and ideas of individuals; these ideas are obviously different than thoseexpressed by legal organizations, whose positions are necessarily reached byconsensus. The records generated by this function express the values, culture andintellectual development of the individual lawyer and, consequently, the legalprofession itself. Clearly, these activities reflect on the legal profession’s impact onsociety at large and should be preserved to show its evolution.The final function of providing legal services is perhaps the most complicatedto assess, partly because of confusion between primary and evidential value. Onecan firmly state that all records series pertaining to the function of providing legalservices have only a short-term primary value. Indeed, while a case is before acourt or a regulatory body, the case ifie generated by the lawyer has ongoingprimary value, for the ifie contains all the information received or created by thelawyer in the conduct of the case. However, once the lawyer has completed thecase, the primary value begins to decline as the file gradually becomes inactive.Once statutes of limitation have expired, legal retention periods have ended or65avenues of appeal have been exhausted, the case file has no primary to the law firmand its ongoing activities.However, there is difficulty in determining exactly when the case ifie becomesinactive. The Supreme Court of Canada has ruled that the limitation period for anaction against any person, including a solicitor, begins when the material facts havebeen found.37 According to the British Columbia Limitations Act, there are anumber of limitation periods ranging from two to ten years.38 For some actions,including those pertaining to questions about the ownership of land, there is nolimitation period. In addition, the start of any limitation period can be delayed ifthe cause for the action is not discovered until later or if the person capable ofbringing the action is somehow disabled and unable to begin the action. These factsprompt lawyers to preserve the case file in the event their conduct of the action isquestioned. However, the probability of such an action arising clearly declines withthe passage of time, and the file finally becomes inactive. The categories oflimitation periods suggest that a period of ten years is sufficient for most if not allactions which could be brought against lawyers in relation to their conduct of aparticular action. This inference suggests that a case file whose action has beencompleted becomes truly inactive at this point.Ultimately, once the primary value has passed, there must be an assessmentGuth, “Retention and Disposition”p.229.38British Columbia, The Revised Statutes of British Columbia (Victoria, 1979),c. 236, s. 3.66whether there is any secondary value to the casefiles. From the perspective of anarchivist, both evidential and informational valuesare strong and permanent.Evidential value exists pertaining to the practicesand activities of the lawyer in theconduct of the case. The way in which a lawyerhanded a particular case may beof interest to other lawyers and individuals. Informationalvalue exists in terms ofwhat can be learned about the clients who seek a lawyer’s services. In arecentarticle, a lawyer attempts to discourage that notion. Under theheading “TheArchivist’s Delusion”, the lawyer writes that “lawyers’ work over the pastcenturywould more often be dull than distinguished”, noting that, in his own experiencewith case files, “I would be hard pressed to think of documents not alreadyin thepublic domain which would be significant.”39 This statement, which impliesthatlawyers’ case files are eventually worthless and should be destroyed, comesclose tothe nihilism Schellenberg mentions. First, the legal profession mayfind case filesof continuing value for a number of reasons. They can be a source for educationof lawyers in the conduct of legal services and a source for research into legalpractice.Lawyers’ records, as much as the records of any other profession, form animportant part of society’s documentary heritage. As shown by their pivotal role inthe administration of any legal system, “lawyers’ activities touch on everyaspect ofBrian Bucknall, “The Archivist, the Lawyer, the Clients and their Files,”Archivaria no. 33 (Winter 1991-1992): 185.67community life, whether social, economic or political.”4° This role is reflected inthe records generated by their work, namely their case files. In addition, the casefiles reflect their preparation for cases, participation in the legal system, andinteraction with clients from a unique perspective that is not documented in therecords of the courts, regulatory bodies or government departments. Using theNorris fonds as an example, files generated by the work of the lawyer provide aricher and more detailed source of evidence and intelligence of the actual conductof legal practice than that found in the public record. The collection of evidence,whether it is receipts, photographs, or depositions, provides an expanded insightinto the case and the direction chosen by the lawyer in providing the particularservice. Correspondence between opposing lawyers provides an additionalunderstanding of negotiating tactics and the background to any settlement whichwas reached, details of which would not be documented elsewhere. The publicrecord reveals how cases were resolved in law and what their precise outcome was;the lawyer’s record reveals the wider context of the case touching upon social andother factors not always found in the public record. As shown in the Norris fonds,much more of the entire legal procedure was present in the lawyer’s ifie as opposedto the public record, which contained little but succinct summaries. Therefore, forthe researcher, using such case files presentsa vivid sense of the human drama so often lacking in the official courtrecords. The records of a lawyer or law firm contain information40Schaeffer, “The Osgoode Society Survey”, p. 183.68about the impact of the law on the individual or on society itself.41This type of information is critical to our understanding ofthe law and its overalleffects on society. A recent study of legal education observed that, because of thecontinuing destruction of lawyers’ records, “we may never learn much about whatlawyers did a hundred years ago, or do today.”42 Shepard and Oliver note thatwhile we know that lawyers and legal matters have had a substantialimpact on the Canadian political, economic and social systems, andthat the nature of the legal influence changed considerably as Canadaunderwent its transition from a rural-commercial society to an urban-industrial one, we remain entirely unable to analyze with anyprecision the nature and extent of the legal influence.43The decision regarding the nature of the legal work of the past century, whetherdull or distinguished, should be made on a more substantial basis than theimpressions of lawyers in the late twentieth century, and the objective study of casefiles is the only means to establish that fact.In addition, the preservation of case files may provide evidence ofdiscrimination in one form or another. For example, government case filespertaining to the internment of Japanese-Canadians in the Second World War wereused by descendants of the internees to obtain compensation. In addition, a studyof juvenile court case files from the 1920s through the 1960s has revealed gender41Whyte, “The Acquisition of Lawyers’ Private Papers,” p. 152.42Consultative Group on Research and Education in Law, Law and Learning, p.125.Catherine Shepard and Peter Oliver,‘tThe Osgoode Society, the Archivist andthe Writing of Legal History in Ontario,” Law Society of Upper Canada Gazette 14(1980): 194.69inequities in the treatmentof juvenile delinquents.The preservation of these casefiles, which mighthave been destroyed becauseof the personal informationcontained within them,has actually helped individuals andsociety at large bypreserving their rightsand providing a means ofauditing a social system. Itisnot unrealistic to assumethat similar studies couldbe conducted on the case filesgenerated by lawyers toassess their role in the conduct oflegal affairs in society.Finally, the statement that allsignificant information is inthe public domainis questionable. Theanalysis of the Norris fondssuggests otherwise. The claim thatthe public recordprovides the essential evidenceand information about theconductof the legal professionis based on a narrow viewof society’s interest inunderstanding howlegal disputes are resolved. Inaddition, some legal issues areresolved without evenresorting to the courts or a regulatorybody, leaving no publicrecord at all.In addition to the lawyer’sconduct of a particular case,the informationalvalue of records of thefunction of providing legal servicesalso pertains to thelawyer’s clients and theirrelations with the legal system.Although referring tosocial welfare case files,one historian has noted that caseifies often document thelives of persons who do notnecessarily leave other records.45Although narrow infocus, the case file may provideconsiderable informationabout the situation of theDanielle Laberge, “Information,Knowledge and Rights: The PreservationofArchives as a Political andSocial Issue,” Archivaria no. 25(Winter 1987-1988): 49.G.J. Parr, “Case Recordsas Sources for Social History,”Archivaria no. 4(Summer 1977): 122-136.70person and its ultimateresolution. Speaking subjectively, thecase files from theNorris fonds provide a valuableinsight into social and economicconditions in theOkanagan Valley in the 1930s.The files provided significant insightinto waterrights, marketing of produce,aboriginal issues, and even thenature of singlemotherhood and divorce during theDepression.Despite the fact that the series may haveinformational value, an individualcase file may not have thesequalities as a result of incompletenessor lack ofcontext. A subjective judgement couldbe made on the thickness orperceivedinterest level of a particular file, butthis is not necessarily a guaranteethat suchfiles are worthy of preserving. Thesurvey of private legal records inOntariorevealed that “the holdings of active andsemi-active records are enormous, butonlya small percentage has obviousresearch value.” The examinationof the Norrisfonds also revealed files ranging fromthose fully documented cases to those whichcontained so few documents that anyunderstanding of the procedure at handwasnearly impossible.For those reasons, and because thereare simply too many lawyers’ recordsto preserve them all, archives willhave to conduct sampling of theserecords.47However, for anyone other than the lawyer orlaw firm to pick and choose files ona subjective basis is inappropriate, becausethe preservation of case files on anSchaeffer, “The Osgoode Society Surveys’, p.182.For an examination of the various methods ofsampling, see Terry Cook,“Many are called but few are chosen’:Appraisal Guidelines for Sampling andSelecting Case Files,” Archivaria no. 32(Summer 1991): 25-50.71individual’s subjective criteria creates askewed portrait of the work of the lawyer.The only appropriate methodis to take a random sample of-the case files, preservingonly those which are chosen as partof the sample. This sample wouldbe astatistically valid representation of theentire series of case files, ensuring that anaccurate reflection of the lawyer’s work will bepreserved.Although the sampling process would providean accurate portrait of thelawyer’s work, it may result in the destruction ofimportant case files. Because thesampling process is objective, certain casefiles may be destroyed which containinformation about important persons orevents. It seems misguided that files withrecognizable research potential shouldbe destroyed purely on the principle ofmaintaining an accurate archival portrayalof a lawyer’s work. The most simpleanswer to this problem is to make subjective selectionsof the more important casefiles based on the contents of thefile. If the representative sample is keptintellectually separate from the subjectivesample, the impartiality of the one samplewill not be tainted by the subjectivityof the other sample.Essentially, this is the approach taken bythe Legal Archives Society ofAlberta in its guidelines for the preservationof legal archives. In addition toproviding advice about the preservation and destruction ofother firm records, theguidelines provide a format for sampling client files.All files closed before 1945 arepreserved, apparently as a means of redressingthe dearth of files from the yearsprior to World War II. All files heardbefore supreme court levels are preserved,most likely because linkages can be madebetween the lawyer’s file and the case file72preserved at the courthouseor archives. Then, all otherfiles are separated intocategories of legal practice,with one closed file from each categorychosen everyfive years to serve as an exampleof the practice of law in thatarea. Finally, anexceptional selection is madeof any case files which are deemedsignificant on thebasis of “political, economic,social or cultural prominenceof the client, project orcase.”Although a means of dealing with the casefiles of a lawyer or law firm, thereare some theoretical problems withthis particular approach. By separatingthecases into categories, thesample which results mayover-represent particularcategories. If there was onlyone case involving a particular area oflaw, that casewould be chosen as the example;conversely, many cases involvinganother area oflaw will be reduced to a singlefile. Although one area of law mayhave been muchmore significant than the other interms of the lawyer’s or law firm’swork, bothareas are given equal weightin terms of what is preserved as the archives ofthatindividual or firm. Although difficultin practice, the only means of preventingoverrepresentation is to conduct the random sampleof the all case ifies first, with anyexceptional selection of certain filestaking place afterward.In summation, this discussionof appraisal for selection has shownthat thefunctions of lawyers produce recordswith high evidential and informationalvalue.Although some records arerelatively worthless and can be destroyed,other recordsLegal Archives Society of Alberta,Selecting Law Firm Records of ArchivalValue: Guidelines for Lawyers (Calgary,1992).73series merit permanentpreservation in their entirety.In terms of the client files,thebest method of preservingthem is to take a representativesample of all the filesfirst, followed by amore subjective sample toensure that significantcases are notlost as a result of the impartialsample.In concluding this discussingof the archival appraisalof lawyers’ records, itis apparent, despite theopinions of some lawyers, thatthe documentary heritage oflawyers is worth preservingin an archival repository.Some records produced bylawyers, notably thosepertaining to the administrationof their practice andtheirprofessional activities, would beimmediately welcomed inany archives which holdscomplementary records. Theproblems arise with the casefiles, which are essentialto understanding a lawyer’swork but have an ethical, restrictiveobligation attachedto them. Clearly, both thelegal and archival professions mustdevise a policy, likelybased on legislation, whichrespects the ethics of solicitor-clientprivilege butensures that researchers ofthe future will be able to studythe history of the law,its impact on society, andthe people who interpret it.74CHAPTER FOURCONCLUSIONThe analysis presented in the preceding chapters leads to a number ofconclusions or recommendations. The first conclusion is that further researchshould be conducted into the records of lawyers, particularly the fonds of law firms.Further tests are necessary, particularly an analysis of the records of a law firm asopposed to an individual practice. Further research may result in refinements oradjustments in that particular aspect of the functional model.A second, more wide-ranging conclusion derives from the archival appraisaldecisions made by lawyers and those responsible for court records. Archivalappraisal should take into consideration the records complementary to the overallprocess reflected by the records. In the instance of records created by lawyers andthe courts, lawyers have apparently assumed that court registries would maintainall court records into perpetuity, releasing them from the need to maintain theirown records. While this is a fatally flawed decision from the perspective ofmaintaining the accountability of a person or organization, it also proved incorrect,at least in British Columbia, where archival appraisal by the records creator resultedin the destruction of almost all court case files.75This situation is difficult in that it involves two differentrecords creators.If only one organization or records creator wereinvolved, the problem would besolved by analyzing the records, preserving therecords in question in one particularseries and sanctioning the destruction of similarrecords elsewhere within theorganization. However, when responsibility for a particular processis dividedamongst two or more records creators, the recordsreflecting that process are subjectto the records management decisions of eachorganization, which could vary andmay even result in the destruction of a vital link of the overall process.The third conclusion pertains to appraisal for acquisition. In keeping withtheir social role of preserving a documentary heritage, archivalrepositories acquirelawyers’ fonds with the understanding that all records within themwill ultimatelybe made available to researchers. The Canadian archivalcommunity should attemptto follow the example of British archives. In Britain, theunderstanding that waiversare obtained for more recent case files and thatprivilege lasts for approximately acentury has permitted archives to preserve portions of that country’s legalheritage.A similar method should be feasible in Canada,where limitation periods on otherforms of sensitive, personal information also extend to thecentury mark. Makingthe files available after a century will not harm thefundamental structure of thelegal system or the long-dead persons originallyinvolved in the case. If the legalprofession is uncomfortable with complete access to therecords even after thisextended period, some form of standard research agreement designed by archivists76and lawyers should be designed. To complement this,further research is requiredto examine various types of research agreementsand assess their effectiveness inprotecting the privacy of individuals, studies which may reassure the legal professionabout providing access to case files. Lawyers themselves should examinethepossibility of having waivers signed by clients at the time a file is opened.Thiswaiver would not only protect them from potentialliability if the file is wronglydestroyed but also allow archival appraisal of the file after itsprimary purpose hasbeen served.In keeping with the preceding conclusion, archivists and lawyerstogethershould formulate mutually acceptable guidelines for the preservationof the recordsof lawyers and law firms. Given the current circumstancesof preservation of suchrecords, archivists must educate the legal profession about the role archivists playnot only in maintaining the accountability of an organization but also in protectingindividuals against unwarranted release of personal information. Whenlawyersunderstand that archivists appreciate their concerns about solicitor-client privilegeand personal privacy, the issue of access to these records can be approached inamanner that respects the opinions of both sides of the issue. This discussionshouldtake place at the level of the provincial law societies, with input from nationallegalorganizations to assure that the concerns of all persons are heard and addressedappropriately. At this stage, legislative action could codify any decisions resultingfrom this evaluation, giving both archivists and lawyers a concrete, legally-defmed77basis from which to work. This legislation should include definitive statements thatlawyers may donate all their records to an archives, that certain time-limitedrestrictions must be imposed on recent case files, and that, ultimately, therestrictions will be lifted when a particular period of time has passed. Whateverconclusions are reached should be publicized, so that lawyers and archivists withinthe area represented by a particular law society are aware of whatever decisions aremade regarding lawyers’ records. With this information, both lawyers and archivistscan act accordingly when questions regarding the archives of lawyers arise.The final conclusion pertains to appraisal for selection. Those records withenduring primary and secondary values which are generated by the activities withinthe function of maintaining a legal practice should be maintained in full, and thosewith short-term primary values should be destroyed as part of basic recordsmanagement. Because of their documentation of the philosophy, culture anddevelopment of the legal profession, records resulting from the activities of thefunction of contributing to the profession should be retained in full. In terms of therecords of the activities of providing legal services, a statistically-valid sample shouldbe made of the case files, with a subjective sample conducted afterwards to capturefiles of obvious research interest missed in the initial sample.In spite of the evidence that records of the activities of lawyers are not beingpreserved in archives, lawyers and archivists may be to simply agree to disagreeabout preserving any records of the legal profession, particularly case files. It is78difficult to change the culture of anentire profession, particularly one so strictlybased in confidentiality. The professionkeeps case files for a lengthy period basedon a perceived primary value resultingfrom the fact that the limitation period forlegal malpractice begins when the relevantfacts are found. When files accumulateto overwhelming proportions, theyare destroyed to preserve solicitor-clientprivilege. Actually transferring lawyers’fonds, including case files, to an archivesand ultimately opening therecords, even those a century old, might be beyond thecapacity of the legal profession.Even with this fact in mind, archivists must continueto promote the issue ofthe archives of lawyers and law firms.Given the importance of the legal system tothe foundations of society, archivistsmust study the records of lawyers anddetermine, as custodians of society’sdocumentary heritage, whether such recordscan be acquired, preserved and madeavailable to future generations. By presentingthese issues to any records creators, includinglawyers, and forcing a debate aboutthe fate of its documentary heritage,archivists have succeeded in their social role,no matter what the outcome.79BIBLIOGRAPHYPrimary SourcesBlake and Redden fonds. MG 28 III 35, Manuscript Division, National Archives ofCanada.British Columbia. Public Documents Committee. Approved application fordestruction of County Court of West Kootenay records. Photocopy inpossession of Catherine Henderson, Court Records Archivist, BritishColumbia Archives and Records Service.British Columbia Archives and Records Service. Operational Records ClassificationSystem: Court Services Branch. Victoria: BCARS, 1993.Saul M. Chemiak fonds. MG 30 E 266, Manuscript Division, National Archives ofCanada.Thomas Grantham Norris fonds. Special Collections Division, University of BritishColumbia.Secondary SourcesAnthony, Russell J. and Alastair R. Lucas. A Handbook on the Conduct of PublicInquiries in Canada. 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