Legal records at risk

‘There is a general lack of knowledge about the Bar, with misconceived notions of what barristers do, how they work and their professional interaction with the solicitor branch and the public… Although much of barristers’ work takes place in public courtrooms, much also remains hidden from view, with many working in the cloistered surroundings of the Inns of Court or in chambers across the provinces.’ So delegates heard at last year’s Being Human festival: the ‘Humanity of Lawyers’ in a session focusing on the work of the Bar.

Does the Bar want its heritage to remain hidden? Our legal framework has been affected by developments including changes to legal services, globalisation and digital obsolescence, but no concerted effort has, as yet, been made to protect and preserve the records which document these changes. The Legal Records at Risk project, led by the Institute of Advanced Legal Studies and working in collaboration with the legal profession, research institutions and archives, including The National Archives and the British Records Association, seeks to develop a national strategy to identify and preserve our legal heritage and to save modern (ie 20th and 21st century) private sector legal records in the UK that may be at risk.

All records in the private sector face similar challenges, but modern legal records are particularly vulnerable due to factors transforming the nature, organisation, regulation and economics of legal services.Additionally, unless systematic efforts are made towards collecting private sector legal records, research using modern legal records will continue to be weighted towards the study of government policy, legislation and the courts, producing a government-centric historical picture of the UK’s legal framework.In short, we are in danger of losing a significant proportion of our legal heritage.

The Bar at particular risk

Our initial findings indicate that the records of individual barristers and barristers’ chambers are particularly at risk. The National Archives’ Discovery portal (discovery.nationalarchives.gov.uk) lists only five sets of 20th century barristers’ chambers papers in local archives and 152 entries for the papers of individual barristers, as opposed to 986 entries for the business records of law firms and 1,368 entries for solicitors (though some barristers will alternatively be listed under future occupations such as judges). Papers usually comprise correspondence, diaries and fee books. Some are classified as ‘legal case notes’ which may or may not contain confidential material. Does the Bar wish to continue to be historically under-represented in this way?

Advice on keeping records

Chambers

The Bar Standards Board Handbook (p 65) states:

‘When deciding how long records need to be kept, you will need to take into consideration various requirements, such as those of this Handbook (see, for example, Rules C108, C129 and C141), the Data Protection Act and HM Revenue and Customs. You may want to consider drawing up a Records Keeping policy to ensure that you have identified the specific compliance and other needs of your practice.’ 

The Institute of Barristers’ Clerks (IBC) also gives guidance on what records should be created and kept by chambers’ clerks, including annual reports and accounts, descriptions of chambers’ work and records of instructions, briefs and fees (see IBC Code of Conduct, Appendix A).

Individual barristers

The Handbook advises barristers to destroy their copies of case papers after six to seven years (C129 and C141), although in the case of lay clients they are entitled to copy all documents received and to retain such copies permanently (C131). Presumably these papers are stored either in chambers or in barristers’ own homes. It is clear, therefore, that chambers and individual barristers hold information of considerable potential research value which could and should be kept securely and preserved for posterity (see box I below for a sample list). Any action to preserve such records would of course have to take into account client confidentiality (see box II below).

How long does confidentiality last?

The Code of Conduct clearly states that client and complaints information are to be kept confidential. The Handbook states:

S12: ‘The regulatory objectives of the Bar Standards Board derive from the Legal Services Act 2007 and can be summarised as follows… that the affairs of clients are kept confidential.’

rC106: ‘All communications and documents relating to complaints must be kept confidential.’

The question is whether this guarantee of confidentiality is in perpetuity or for a limited (in archival terms) period. The Code of Conduct does not specify a length of time, so the next question is whether there is a tacit assumption of confidentiality in perpetuity, and whether this has ever been challenged. The expiry date for legal professional privilege is also a grey area and one reason why client case files are not usually offered to, or accepted by, archives unless they are at least several hundred years old. It is time and more that the legal profession clarified exactly how long it expects client confidentiality to last (see box II).

Progress to date

We have been in touch with the Inns of Court archivists and librarians to seek support for the project – all have offered support in principle despite their limited resources and an article has been published in the Inner Temple e-newsletter.

An agreement has been made with the London Metropolitan Archives to accept legal records of historical value of London-based legal entities identified by the project.

In partnership with the British Records Association and The National Archives, we are also developing a consistent model for the rescue of the records of legal entities and practitioners outside London.

Appeal to the Bar

Seeking to engage the interest of barristers and practice managers, we are appealing not only to your sense of the potential historical value of Bar records but to your understanding of the importance of letting the public know what you do and how you do it, so that they in turn will have a more accurate grasp of the importance of your work and its value to the community.

Greater transparency and public engagement through the eventual release of records for research should enhance the profession’s public-facing image and help address the issues raised above, not least to challenge some public perceptions about the Bar. There are other benefits, too, in terms of cost savings for chambers (eg reduced storage space and more efficient records management).

The Legal Records at Risk project will:

• Advise on, and help identify, records of barristers and barristers’ chambers that may be of long-term value both for business reference and external research.
• Facilitate the process by whichselected records are deposited in archive repositories and ensure that confidentiality and access concerns are fully addressed. This does not mean inundating the Inns of Court libraries and archives with records if they do not have the capacity– we have arrangements with other local archive repositories.
• Provide generic recordkeeping advice to information owners as required (such as on digital continuity of records; email management; shared drive management).

Quite simply, if you hold any of the records referred to in this article and agree that there is an argument for preserving them for posterity, not least to enhance the reputation of the Bar, please contact the Legal Records at Risk Project Director, Clare Cowling at clare.cowling@sas.ac.uk.

Contributor Clare Cowling, Associate Research Fellow and Project Director, Legal Records at Risk project, Institute of Advanced Legal Studies, University of London.