Thursday, June 19, 2014

Klinefelter and Laredo on the Eternal Attorney-Client Privilege

Anne Klinefelter, University of North Carolina School of Law, and Marc C. Laredo, of Laredo & Smith, LLP, has posted Is Confidentiality Really Forever -- Even If the Client Dies or Ceases to Exist? Which appears in Litigation 40 (Spring 2014): 47-51.  Here is the abstract:    
The law firm of Lizzie Borden’s lead attorney continues to maintain her client files in a confidential manner. In contrast, the trove of notes kept by another attorney on the defense team were discovered by his grandson, who willed the client materials to the local Massachusetts historical society, making them generally accessible some 100 years after the murder trial.

Which is the right result? Does client confidentiality live forever? What if the client is an entity rather than an individual? Should there be some point in time -- 50 or 100 years -- when this right to confidentiality expires? Who will enforce the privilege once all the participants are dead? These questions have important implications for attorneys, law firms, and corporate entities. But they are also questions of importance to librarians whose libraries might be given papers that were protected by the attorney-client privilege, represented work product, or were the subject of an attorney’s ethical obligation to protect the confidentiality of client matters.
[As it happens, earlier this week I looked into the recently opened David Ginsburg papers at the Library of Congress.  here's how its access form deals with this issue:

"Users of the David Ginsburg Papers are advised that some of the legal files in the Ginsburg papers may contain privileged communications between client and attorney.  There is to be no use of privileged communications between client and attorney without permission of the client or, if the client is deceased, the executor of the client's estate.  it is the users' responsibility to obtain consent or to make a reasonable effort to contact the client or executor.

"I acknowledge that I have read and will abide by the restriction regarding the use of privileged communications between client and attorney.  I will not make use of any privileged communications between client and attorney in the David Ginsburg papers without the permission of the client, or, if the client is deceased, the executor of the client's estate, so long as the communications remain protected by attorney-client privilege."]

1 comment:

Unknown said...

It is absurd that the A-C privilege should be considered eternal. Lawyers' files are great troves of primary source materials for historians. Interested readers should consult the Organization of American Historians report: Historians and Access to the Files of Lawyers prepared by the Ad Hoc Committee on Access to Lawyers’ Files [Kermit L. Hall (chair), Paul Finkelman, N. E. H. Hull
Stanley N. Katz] available on the ASLH website: http://aslh.net/resources-for-doing-legal-history/historians-and-access-to-the-files-of-lawyers/

-Josiah Daniel
Dallas