Information as an asset: the business benefits to providers of legal services of preserving records

The second Legal Records at Risk seminar was held at the Institute of Advanced Legal Studies (IALS) on 23 November 2016. The purpose of the seminar was to investigate the business benefits to private sector institutions specialised to law of keeping records accessible for internal business use and, eventually, external research.

There were four presentations as follows:

Each presentation (slides are available on the LRAR website) made a different valid point about the benefits of managing and keeping records so that they can be used for other purposes as follows:

• Judy Slinn, who has written the histories of several high profile law firms, described how the historical business records of law firms can be a valuable asset to the firm itself, charting its growth, adaptation to globalisation and international practices, legal specialisations and contributions to social, legal and economic developments. For the historian, these business records are highly relevant to the charting of legal, political and social change as well as to the development of the legal profession itself as a service industry.
• Maria Sienkiewicz gave a riveting presentation demonstrating the value of its in-house Archives to Barclay’s Bank, not only in having a major role in corporate branding and public relations but in unearthing evidence in the Archives which helped the bank to win an appeal against having to refund overdraft charges, potentially saving Barclays up to £1 billion.
• Emma Ferguson demonstrated conclusively, using her firm, Chadwick Lawrence LLP as an example, that instituting a professionally managed records management and disposal (either by destruction or archiving) programme saves unnecessary costs, increases efficiency, improves compliance and enhances client and staff satisfaction.
• Jane Marshall described the creation and work of the Pensions Archive Trust, a charity set up to rescue the records of pensions bodies in partnership with the London Metropolitan Archives. She demonstrated how the material is collected, the contributing organisations and practicalities such as dealing with the sensitivity concerns of different bodies and protection of confidential material. This Trust could be a model for the Legal Records at Risk project going forward.

Seminar discussion topics

In addition to the four presentations, two open discussions were held on the following topics:

1. Do the business benefits of preserving legal records outweigh the risks?
2. Does the benefit to legal entities of investing in archival provision for records outweigh the effort involved?

Discussion topic 1: Do the business benefits of preserving legal records outweigh the risks?

The group identified the following business benefits:

• Re-use of records for strategic planning, corporate branding, reputational benefits around community engagement, transparency and honesty, speedy and effective service to clients, better compliance with regulatory and legal requirements (especially around the management of client files) and an improved understanding of historical context.
• Business seen as caring about/part of the community, not removed from it.
• Good PR – honesty, learning from mistakes etc.
• Better understanding by the public of the value of legal services.
• Removal of on-going management costs if an external archive is used.
• Destroying the rubbish and just keeping the good stuff saves money.

The presentations were cited as clearly demonstrating these benefits. The fact that Barclays had saved upwards of £1 billion through using records in its in-house archives to win a court case was duly noted!  It was also agreed that these business benefits apply equally to the proper management of current and semi-current records as well as preserving archives.

The group identified the following risks:

• Potential breaches of confidentiality and security
• Litigation
• Reputational damage.

It was agreed that these risks are caused primarily by poor information management but that reputational damage could be caused by the publication of records containing politically incorrect content.

It was suggested, however, that being honest and transparent about past mistakes could only benefit an organisation, otherwise rumour will take over (“what have they got to hide?”). Several seminar attendees felt that the legal profession’s culture of secrecy unfortunately mitigated against transparency and that the profession at times seemed to be almost afraid of its own records rather than regarding them as a potential asset.

Solutions suggested included educating the profession about the value of its records as an asset and of their re-use potential and lobbying to overcome the culture of secrecy.

Discussion topic 2: does the benefit to legal entities of investing in archival provision for records outweigh the effort involved?

The three alternatives open to legal entities were noted:

• Store the records in a basement, warehouse or “archive” server and eventually destroy them.
• Set up an in-house archives for material of value and destroy the rest once it becomes redundant.
• Deposit valuable records in a 3^rd party archives such as a county record office and destroy the rest once it becomes redundant.

Several seminar attendees felt that legal entities, especially law firms, would continue with option 1 as it was a) too difficult to convince the partners and senior administrators of the cost value of records management and archiving of valuable records and b) there was too much nervousness over allowing historic material to enter the public domain.

Option 2: there is no doubt that setting up and managing an in-house archives is costly, but as Barclays has shown, it can certainly be worth the cost. It’s interesting that all the major banks in the UK and several large businesses (eg Diageo, Boots, Marks & Spencers) consider that investing in an in-house archives is financially worthwhile.  Why don’t the large law firms?

Option 3: transferring records to an external archives such as a county record office costs information owners very little in the larger scheme of things, but some effort and planning on the part of the owners is required to engage with archives. Factors mitigating against such actions include: indifference, worry about reputation and confidentiality concerns.  This led to some discussion on confidentiality, particularly around client files, where the concept of “confidentiality in perpetuity” seems engrained, even though it is nowhere expressed in regulatory guidance.  “Confidentiality in perpetuity”, however, does not apply to the business records of legal entities.

Some law firms have deposited records with archives, often via the rescue service offered by the British Records Association (BRA) and usually resulting from an office clear-out or closure of the firm.  Records have tended to be passed to the BRA and archives without being listed and often in dreadful condition, yet the BRA and archives have shouldered the cost of doing the essential work necessary to make the records accessible to both the public and the firm’s own clients.  In the past these firms have, quite frankly, exploited the willingness of the British Records Association and local record offices to rescue records free of charge and of record offices to house, conserve at catalogue records; however the BRA can no longer provide a warehousing service and it is certainly no longer appropriate in the current economic climate to expect the taxpayer (who funds county record offices) to cover the cost of solicitors’ unwillingness to take some responsibility for their own historic records – at least in terms of part-payment towards their proper care.

The group all agreed that managing records costs money but that legal entities should be doing this work anyway as part of best practice and regulatory requirements. Archiving valuable material is simply the end of the process.

In summary, the group agreed that many institutions specialised to law have:

• Little awareness of information as an asset; therefore records are under-utilised for branding or re-use for strategic planning or to ensure a speedy and effective service to clients or to enhance reputational benefits around community engagement, transparency and honesty.
• Little awareness of the true cost of continuing to keep unmanaged information (unnecessary storage costs, excessive server space slowing down processes, digital obsolescence, time wasting).

Very low awareness of the value of keeping records of historical value permanently (community engagement, exhibitions, histories – reputational advantages around being seen as open about an organisation’s history – including mistakes and learning from them, demonstrating good practice etc.

Options for change

The group all felt that educating the legal profession about the importance of managing information responsibly as the key, as without good information management legal entities cannot work efficiently and historical records of value (particularly born-digital records) will become inaccessible.  Options suggested included: making information management part of CPD training; more pro-active work by the regulators and membership organisations to promote existing best practice guidance; lobbying by researchers and archives on the value of legal records.  All agreed that breaking the culture of secrecy was necessary.

Practical solutions for legal entities

• Clear accountability and responsibility for managing information and records.
• Active and vocal support of senior managers in enforcing compliance with corporate standards and regulatory requirements.
• Training all staff to recognise their responsibilities for, and improve their competencies in, records management.
• Developing strategies for information management (paper and electronic) over time, including managing records of permanent value. Without this last solution it is not possible to have an end to end records management programme.
• Understanding the true cost of making records accessible and, at the very least, making a donation to archives which are willing to house and care for the records of institutions specialised to law. In relation to this last point the possibility of creating a model along the lines of the Pensions Archive Trust to rescue legal records of value was noted and will be followed up.

Post by Clare Cowling