8.3.1 Private sector legal institutions’ institutional records
During 2018 LRAR compiled a specific list of legal bodies whose records are not known to be held in an archive repository and which therefore might be at risk.42 One hundred and twelve legal institutions were identified; 21 had already been contacted during the course of the project (only two successfully) and another 30 were contacted in April 2018 (with only one response). This list might, we hope, form a basis for a targeted campaign by LRAR successor bodies to rescue at least some records.
8.3.2 Business records of law firms
Though the BRA and local authority archives have in the past been remarkably successful in rescuing legal instruments such as deeds and wills offered by law firms, as evidenced by the vast numbers in archives listed in Discovery, they have been less so in collecting the business records of law firms themselves. There are notable exceptions to ‘deeds only’ collections, as evidenced by TNA’s Accessions to repositories,43 especially the business records of several London law firms held in LMA, but it does appear that collection of the business records of solicitors by archive repositories has primarily been on an as and when offered basis; this category of records could therefore be said to be at risk where law firms are unaware or unwilling to offer records to repositories. To this category must also be added the records of law firms which have been intervened in by the regulators.
Law firms may also be at risk due to mergers or closure; both factors can be triggers for firms to deposit records with local authority archives or pass them (until recently) to the BRA. There is no simple way to identify which records of which firms may be at risk due to these occurrences; the census of Oxfordshire legal institutions currently being undertaken (see Ch 6 s.6.7) may suggest a methodology for identifying such records.
8.3.3 Client case files
As described above, this category of records has been known to filter through to archives, usually as random files of individual clients included in batches of unlisted records dumped on repositories by law firms or included in the ‘personal’ papers of legal practitioners. We are unaware of any complete or near-complete sets of client case files which have made their way into archives in the past and, given the express statements of some members of the legal sector that these records are permanently confidential, it seems most unlikely that any client file datasets would be offered to archives in the future. Ironically, better records management by legal institutions and greater awareness of the issue of long-term client confidentiality on the part of archive professionals will probably mean that fewer random client files make their way into archives. This is unfortunate, since case files (such as those produced by citizens’ advice bureaux and law centres) can be valuable in their representation of marginalised and under-represented individuals and communities not documented in other classes of records.
8.3.4 Clients’ documents and legal instruments
Legal instruments (deeds, wills etc) held by law firms are now more at risk than in the past, partly due to the fact that the BRA no longer has the resources to act as a temporary repository for this material. Deeds and other client documents and, more rarely, the business records of law firms themselves, are also at risk from being offered for auction to the highest bidder by law firms, a somewhat dubious process (though mostly legal unless personal data or client files and documents are included in items for auction) which perpetuates the loss of our heritage.44
8.3.5 Records of legal institutions and practitioners physically located outside Greater London
but with a wider than local focus
Quite simply, these records are at risk because there is no existing repository with a remit to collect them. A list of institutions identified in this category was passed to TNA, which is compiling a schedule of private sector records at risk, in 2017.45
42 See Appendix III.
43 Annual accessions to repositories (ie lists of records deposited in archives) will be found here: http://www.nationalarchives.gov.uk/accessions/. 44 For a sample of records offered at auction see horror stories in Appendix XII.
8.3.6 Barristers’ chambers’ records
No records of Inns of Court chambers or regional barristers’ chambers have been deposited in archives, though some records such as fee books may have been collected as part of the personal papers of individual barristers, judges etc.46 This category of records has therefore been designated as being at high risk.
8.3.7 Individual legal practitioners’ records
One of the assumptions at the start of the project was that the personal papers of legal practitioners such as arbitrators, mediators, barristers and solicitors, which might contain valuable information relating to cases in which they were involved, would probably be stored in the garages, attics and basements of those practitioners and could therefore be said to be at risk. It was not possible to either prove or disprove this assumption, as, following offers in legal journals47 to rescue such records, only four practitioners came forward with a selection of papers stored in their homes.48 The records of these practitioners comprised a mix of personal material, copies of papers of cases or campaigns in which they were involved and what may be copies of the administrative records of bodies of which they were members.49
An examination of Discovery yielded a rich harvest of diaries, notebooks and personal papers of individual legal professionals and practitioners already deposited in archives.50 At this stage it is not possible to generalise as to whether more recent records of individuals are at high risk, given the stated willingness of local authority and specialist archives to accept the relevant papers of prominent legal practitioners and the possibility that much material which may be held in attics etc duplicates records elsewhere (such as in institutional records). There are also questions around whether some records, such as case notes, should be retained long-term by practitioners in the first place and, therefore, whether it is appropriate to offer them to archives.51
8.3.8 Records of legal institutions with a regional focus
This category of records (local law societies, legal associations and law centres) appears to have been collected by local authority archives whenever offered; the records may therefore be said only to be at risk where the local body is not aware of the services offered by archives. Certainly local authority archives seem to be aware of the existence of such bodies and would be happy to collect their records where resources permit. In its second attempt to contact legal institutions in April 2018 LRAR attempted to raise the awareness of some of these bodies to the existence of local authority archives and the services they offer.52
8.3.9 Records of legal institutions not on the list of records not at risk
Given the fact that setting up an in-house archives is extremely costly, it must be assumed that all legal institutions not included in the ‘not at risk’ list and which have not engaged with LRAR hold records which are potentially at risk. This lack of engagement probably indicates nothing more than a wish not to be involved in a project outside the main remit of the legal institution, but it also demonstrates a lack of interest in preserving records – otherwise, presumably, there would have been at least a response to say that the legal institution does have/has deposited its records in an archives.
46 See Appendix II.
47 Via articles in TLS’s Gazette, the Bar’s Counsel, the CILEx journal, seminars etc. 48 See Appendix VII for details.
49 See Appendix VII for details. 50 See Appendix II S. 4.
51 See, for example, the instruction by CIArb quoted in Appendix VIII that ‘all records, reports, or other documents received by a mediator, as well as all notes taken by the mediator during, with reference to, or for the purposes of, the mediation should be returned to the parties or kept secure until no longer needed for any purpose relating to the mediation and then destroyed’ CIArb Practice Guideline 1: Confidentiality in mediation, p.1, http:// www.ciarb.org/docs/default-source/ciarbdocuments/guidance-and-ethics/practice-guidelines-protocols-and-rules/mediation/1–guidelines-on-
confidentiality-in-mediation.pdf?sfvrsn=4.
52 The contact emails stated: ‘We are working with The National Archives and The British Records Association to develop a national strategy and procedure to rescue private sector records at risk, including legal records. This includes building a picture of just how many organisations consider that they hold records of potential research value but are a) unsure of how to dispose of them either by destruction/deletion or by placing them in an archive repository or b) how data protection, GDPR etc affect records retention. If you think your organisation may be in this category then do please let me know to ensure that your concerns are not overlooked. If you do, however, already have a suitable archival repository for your selected records of value, either in-house or with a recognised third-party repository (e.g. a local authority or specialist archive), I would be most grateful if you could inform me so that we can adjust the records at risk register accordingly’.
8.4 Conclusion
From the above contacts it was clear that the primary obstacles to the specific rescue of legal records were, in order of importance: a) client confidentiality issues b) lack of interest on the part of legal institutions and c) reduced archival resources.
It also became obvious quite early in the project that there were too many legal institutions with records at risk (assuming that non-responders and negative responders had no interest in their historic records) for the project, given its existing resources, to undertake any kind of systematic work to broker deposits of legal records with archives. The Executive Committee therefore agreed in February 2017 that there should be a change of emphasis from concentrating on specific categories of legal records to working towards a national strategy to rescue legal records at risk in general. Private sector records are now undoubtedly more at risk than in the past due to the decreased resources of archive repositories to proactively collect them. Legal records must be included in this wider picture; LRAR and any successor initiative therefore needs to contribute to any national strategies or initiatives to identify and rescue private sector records at risk.
To summarise, current obstacles to the collection of private sector legal records are as follows: • Concerns about client confidentiality.
• The attitude of the legal sector in general – uninterested in its own history and/or secretive about how it works and over-concerned with confidentiality.
• Poor recordkeeping by legal institutions resulting in the loss of valuable records. • Poor understanding by legal institutions of information as an asset to be exploited. • Misperceptions over the application of the Data Protection Act and the GDPR to records. • Ownership issues where individuals have acquired business records and vice versa. • Digital obsolescence.
• The changing role of the BRA.
• Reduced archival resources to undertake anything other than ad hoc records rescue work. • The archive sector’s resulting reactive, not proactive, attitude to rescuing private sector records. • Gaps in archival provision for legal records which do not fit into existing collections policies.
Most of the above obstacles can be overcome through a combination of strategies to rescue private sector records in general and legal records in particular. Both are long-term solutions which will take time and resources to achieve.
Chapter 9: Solutions
Again, many of the solutions outlined below apply to private sector records in general, but one or two are focussed solely on rescuing legal records.