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In the midst of concerns about confidentiality and data protection, it is easy to forget that documents – or hard-copy documents at least – have owners; that is, the physical paper belongs to someone. Copyright in the contents is also

17 Nicholas Le Poidevin’s original ppt presentation and accompanying notes have been paraphrased by Clare Cowling and are reproduced here with his permission. The article contains brief guidance in general terms only. No responsibility is accepted for the accuracy of any statement of law. For the presentation see https://ials.sas.ac.uk/sites/default/files/files/Research/LRAR/LRAR_seminar3_2017_Presentation_N_le_Poidevin.pdf.

owned by someone, not necessarily the same person; the fact that the contents have no literary merit, which is alas true of most legal documents, is immaterial.18

Identifying the owner is not always easy. The Law Society publishes a Practice Note on the point, entitled ‘Who owns the file?’.19 _{A paraphrase of the guidance is this:}

• Original documents sent to the firm by the client will continue to belong to the client. • Documents sent or received by the firm as the agent of the client belong to the client.

• When the firm is retained to produce a document (e.g. an agreement), the final version belongs to the client.

• Final versions of documents prepared by a third party and paid for by the client also belong to the client (e.g. a barrister’s opinion or an expert’s report).

• Documents prepared for the firm’s own benefit or protection, or prepared as the means by which the firm discharges its function, belong to the firm (e.g. file copies of letters written to the client, drafts and working papers).

• Copies of internal emails and correspondence created while the firm is retained, and all emails and correspondence written by the client to the firm, belong to the firm.

• Accounting records, including vouchers and instructions, belong to the firm.

The question of ownership will arise primarily if the practitioner contemplates depositing records in an archives. The fact that the client has not asked for them to be handed over to him is not of itself a legal protection. It is true that there is a time limit for making a claim, which is six years.20 _{Time, however, does not start to run from the date when} the practitioner created or received the document but from a wrongful conversion by the practitioner i.e. treating the document as his own; depositing the document in an archives would be a conversion. No one will worry about the actual ownership of really old records but there are contexts in which a long time has to pass before it can be assumed that confidentiality is not a problem, a point picked up below.

Merely allowing inspection of a document is not an infringement of ownership, nor is it a breach of copyright. But it is generally a breach of copyright to allow a copy to be taken, whether a mere photocopy or publishing a document in a book. The author of the document is ordinarily the owner of the copyright, so that the writer of a letter to a practitioner retains the copyright in it. Nonetheless, copying for non-commercial research or private study is specifically permitted by statute21 _{and though there are restrictions on the protection it is unlikely, given the nature of legal records, that} copyright will be a practical problem.

Privilege

Privilege – more fully, legal professional privilege – is often mentioned in connexion with legal records. It is, however, irrelevant for present purposes.

Privilege arises routinely in the context of civil litigation, though it does so in other contexts too. There is a general rule that parties who are litigating are obliged to disclose to each other documents relevant to any matter in dispute which are or have been in their control and then to allow inspection of those documents (usually by providing a copy).22 Privilege is an exception to that obligation. It applies to documents by which legal advice is sought or given or which have been brought into being for the purpose of litigation. Such documents do not have to be provided to another party; they are ‘privileged’. You need not show your opponent the legal advice you have obtained. The privilege is that of the client, not that of the practitioner, but the practitioner is bound to give effect to it.

The reason why privilege is irrelevant for present purposes is that it is a valid objection to what would otherwise be a legal right in someone else to see a document. Archivists and historians have no legal right against either a practitioner or the client to see any documents. Hence the existence or non-existence of privilege makes no difference.

What makes a difference is the obligation of confidentiality, which comes next.

18 Business letters are the subject of copyright: Copinger and Skone James on Copyright (17th ed.), para. 3-41.

19 Authorities relied on are Leicester County Council v. Michael Faraday & Partners [1941] 2 K.B. 205 (C.A.); Chantrey Martin v. Martin [1953] 2 Q.B. 286 (C.A.); Gomba Holdings UK Ltd v. Minories Finance Ltd [1988] 1 W.L.R. 1231 (C.A.).

20 Limitation Act 1980, s. 2.

21 Copyright, Designs and Patents Act 1988, ss. 29(1), (1C), 29A; Copinger and Skone James, op. cit., para. 9-36.

Confidentiality

The client has a right against the practitioner to have his affairs kept confidential. The legal rule for solicitors is expressed as follows: ‘A solicitor must keep the affairs of clients … confidential except where disclosure is required or permitted by law or by the client’.23

The Code of Conduct of the Solicitors Regulation Authority24 _{requires the solicitor to ‘... keep the affairs of clients} confidential unless disclosure is required or permitted by law or the client consents.’25

Similarly, for barristers the Code of Conduct of the Bar Standards Board imposes both a ‘core duty’ and a rule as follows: ‘You must keep the affairs of each client confidential’26 _{and ‘you must protect the confidentiality of each client’s affairs,} except for such disclosures as are required or permitted by law or to which your client gives informed consent’.27 Those obligations are not confined to material which is obviously sensitive or private, such as commercial negotiations or family secrets, but extends to all information acquired by the practitioner in the course of acting for the client. But for obvious reasons they do not extend to material already in the public domain, such as a planning permission.

The duty to maintain confidentiality does not come to an end merely because the practitioner has ceased to act for the client, so that the latter has become an ex-client.28 _{Nor does the duty cease merely because the client is dead. That} is part of the general principle that a client’s entitlements form part of his estate. The right to insist on confidentiality passes to the executors or administrators; and even when they themselves are dead they can be replaced by others. It follows that a practitioner would necessarily be in breach of duty by permitting inspection of a client’s files or by passing them to an archive, even when the client died some time ago.

There seem to be only two possible solutions:

1. One is to include in the practitioner’s agreement with the client, which in the case of a solicitor is set out in a client care letter, a term allowing the practitioner to do those things after the passing of a given period of time. The difficulty with that possibility is that the client is not likely to be willing to agree to a short period and the practitioner has little incentive to press for such agreement. The practitioner’s interest in not having to store documents indefinitely is more simply met by obtaining the client’s agreement to destroying material after a given period; and that, of course, is the primary choice under the data protection legislation.

2. The other solution is to wait until the practitioner can be confident that no one will care – a practical rather than a legal solution. The difficulty with that possibility is that the wait may be impracticably long. Some legal material may have a lasting relevance – in the case of rights of way, for example, it is sometimes necessary to investigate very elderly material – and it will be unappealing to retain modern records for a lengthy time.