Life Everlasting?

The Absurdity of Perpetual Privilege

Auteurs-es

  • Jean Dryden

Résumé

This article looks at solicitor-client privilege and the lawyers’ duty of confidentiality from the perspective of the harm done to legal history and Canada’s documentary heritage by the claim that privilege never ends. After discussing the emergence of the field of legal history, the scarcity of lawyers’ papers preserved in archives, and efforts to address the perpetual privilege problem, the author examines the rationales for privilege and the justifications for its purportedly absolute and unending nature and finds them wanting. The article then sets out the role of archival institutions in preserving historically valuable records and making them available for research. The author argues that, after a reasonable interval, the public interest in access to lawyers’ papers trumps privilege and that archivists have the tools and experience to manage (temporary) access restrictions to such materials. The recent guidelines on disclosure of historical records under the Access to Information Act signal that privilege need not be perpetual and indicate the need to start a conversation to finally resolve the conflict between privilege and fuller documentation of both the legal profession and its impact on society.

Biographie de l'auteur-e

Jean Dryden

Jean Dryden is an archival consultant, independent scholar, and adjunct professor in the Faculty of Information at the University of Toronto. She has many years of experience as a staff archivist and archival administrator at the National Archives of Canada, the Provincial Archives of Alberta, and as Chief Archivist of the United Church of Canada/Victoria University Archives. Throughout her career, she has been active on committees and boards of professional associations in Canada and the US. A member of the International Council on Archives’ (ICA) Expert Group on Legal Matters, she represents the ICA at the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights. Her research interests focus on barriers to access to archival holdings, particularly impediments posed by copyright. Her doctoral dissertation investigated the copyright practices of Canadian archival repositories in making their holdings available online. Her interest in solicitor-client privilege arose during a project to appraise, arrange, and describe the records of an organization involved in a series of landmark legal cases. The possibility that the records would be stripped of privileged materials led to her investigation of the rationale for perpetual privilege, which resulted in this article.

Jackie Shane performing with Frank Motley in Toronto.

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Publié-e

2025-05-07

Comment citer

Dryden, Jean. 2025. « Life Everlasting? The Absurdity of Perpetual Privilege  ». Archivaria 99 (mai):34-66. https://www.archivaria.ca/index.php/archivaria/article/view/14019.

Numéro

Archivaria 99 (Spring 2025)

Rubrique

Articles

Licence

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