This paper looks at solicitor-client privilege from the perspective of the harm done to legal history and Canada’s documentary heritage by the claim that privilege never ends. Solicitor-client privilege provides that communications between lawyer and client in pursuit of legal advice cannot be disclosed without the consent of the client. Absent that consent, privilege lasts forever. The supposedly permanent duration of privilege has resulted in a gap in the sources for legal history, particularly lawyers’ papers. Lawyers’ papers may include client files, as well as notebooks, legal opinions, diaries, memoirs, and teaching materials, all of which could potentially breach privilege. Given the central role of the legal profession in Canadian society, such records belong in archival collections. But few lawyers’ papers have been preserved in archives, since there is little incentive to allocate resources to them if they can never be used. A significant portion of the documentary heritage of the legal profession has been denied to posterity because of a legal doctrine developed for a completely different and much more limited purpose. My aim is to raise awareness of this issue in the library/archives community as well as (in other fora) in the legal community.

This problem has been periodically discussed in the legal and archival literature since the emergence of legal history in the 1970s, but it has never been satisfactorily resolved. My research was sparked by the prospect of destruction of privileged documents in an archival collection containing records of landmark Canadian legal cases. To do so would be like ripping certain pages out of a novel, leaving gaps in the story. To understand the justification for privilege and the need for perpetuity, I’ve canvassed the legal treatises, textbooks, and jurisprudence (both Canadian and American) that discuss this aspect of evidence law, and I’ve found that privilege, and its purportedly absolute and unending nature rests on a shaky foundation. I then turned to the archival and legal literature to state the public interest role of archival institutions in preserving historically valuable records and making them available for research, and the various (unsuccessful) attempts to address the problem. I argue that, after a reasonable interval, the public interest in access to such records trumps privilege, and that archivists can be trusted with the responsible stewardship of such records. I conclude with several measures to resolve the conflict between preservation of the complete historical record and the legal profession’s devotion to the sanctity of privilege, and what would be required to convince the provincial law societies that privilege need not last forever.

Recording: https://youtu.be/mhgQNtONKqQ