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UBC Theses and Dissertations

The records of lawyers : archival appraisal and access Gourlie, Michael


Despite the importance of lawyers as persons within the legal system, their activities have not been well-represented in the documentary heritage of society as preserved in archives. The primary reason behind this situation is the principle of solicitor-client privilege, which traditionally protects the lawyer-client relationship from disclosure. The privilege has not only barred the archival acquisition of and access to client files for research purposes but has also apparently prevented any in depth study of the records lawyers create. This study attempts to shed light on the records created by lawyers and their possible disposition. First, the thesis uses the concepts of diplomatics and an analysis of the historical development of lawyers to categorize their work. The functions it defines include maintaining a legal practice, contributing to the profession and providing legal services to clients. The thesis then examines the central function of providing legal services by analyzing an actual lawyer’s fonds and comparing it with related records in court registries. This analysis illustrates how lawyers records fall both into functional categories and diplomatic phases. It also reveals that, contrary to certain observers, few of the documents in the lawyer’s file appear in the court registries and even fewer are preserved in archives as a result of records management decisions by the registries. These findings provide grounds to consider archival appraisal of lawyers’ records. First, it is argued that concerns about solicitor-client privilege need not inhibit preservation and access to lawyers’ records in archival institutions. With this impediment removed, archivists can proceed to acquire the fonds of lawyers on a selective basis both among and within fonds. In terms of appraisal for selection, certain records resulting from the activities within the functions of maintaining a legal practice and contributing to the profession are worthy of permanent preservation and have no access restrictions on their use. For the function of providing legal services, a statistically-valid sample of these case files should be preserved to illustrate this aspect of a lawyer’s work. However, it is vital that lawyers and archivists must work together on finding mutually acceptable policies that both respect the privacy of clients and allow access to the record of legal practice for future generations.

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