A couple of points come to mind.
(1) Although you can prepare those who are responsible for records to
deal with a number of situations, such people can end up being
blindsided. I would remind people that communication with the lawyers
representing their own organizations is _very _important. Keep the
organization's lawyers informed of issues and insist, insist, that they
do the same for you.
(2) Keep in mind that an organization's lawyers may have a conflict of
interest. If they are representing a corporation or a government
agency, they may or may not tell a records manager, archivist, or
historian about such a conflict of interest.
Don't take anything for granted! Is there the possibility of conflict
of interest in situations where the defendant is an institution or
agency, rather than a named official? Yes. An official in your agency
or organization or firm may take actions that you, as records manger,
disagree with. Or defense of a lawsuit may degenerate into finger
pointing and blame shifting. Whom are the institutional lawyers likely
to protect in that situation? You don't know, it depends on how the
lawyers view their obligations to their employer.
My advice is, don't be passive and don't assume anything. Be bold
about quizzing your lawyers in advance as to whether there are any
potential conflicts in their reconciling the need to protect your
interests, as an individual employee, with those of the corporate body
or the interests of other officials who work there. This can become a
real problem if other powerful players and interests are involved.
Believe me, I've seen this is a lawsuit involving my previous employer,
the National Archives. So, don't hesitate to ask if there are any
"impairments" that would affect "your" (the organization's) lawyers'
ability to represent _your_ interests.
Rae, I don't know how you can emphasize this in so brief a
presentation. You know better than I. Perhaps you can just mention
that these things can happen. I don't know how many case studies there
are out there. But, having once testified as a government witness in a
very difficult case involving Presidential records and White House
interests in 1992 (I'll spare you all the details), I know all too well
how messy these things can get! Lawyers from the Department of Justice
supposedly "represented" me and other National Archives' officials. It
turned into a harrowing experience for me, especially since former
President Richard Nixon had entered the case as an Intervenor. I came
through it ok but it was not easy.
After I testified, I studied the court record, thought back on my own
experiences and also considered what I had heard about possible witness
intimidtion surrounding the testimony of another archivist who testified
in the case. I took a deep breath and ended up writing to the U.S.
Attorney General with a number of ethical concerns about the way DOJ had
handled the testimony of working level archivists. Believe me, it was
not an easy decision to make!! I hope none of you ever end up in a
similar situation.
So, Rae, you need to make sure individuals know what can affect their
"representation," in a worst case scenario, and how to protect
themselves. Believe me, I'm glad to hear you are giving a presentation
on Legal 101 !!!
Maarja
>>> [log in to unmask] 4/13/2005 9:17:49 PM >>>
Okay - a bit of a clarification for this proposed session at the ARMA
conference. This will be a 1.5 session only and the basis is to
provide
basic information on legal issues - not dealing with legal records
management - but legal basics for all RIM professionals. Such as
basic
legal terminology to help understand a legal hold process, perhaps.
There
is so much information that could be covered, which is why I asked for
suggestions that would be helpful to an attendee, not particularly what
I
think you should hear.
I am grateful for all the suggestions, unfortunately, some of them
will
not be able to be incorporated into such a short session. However,
these
will be great ideas to provide to the Program Committee for the next
ARMA
conference.
Again, I encourage all suggestions, but understand the focus is not
specific to legal records managers (I believe that there is such a
pre-com
session this year), but to all records managers.
Thanks again and keep those comments coming!
Rae Cogar, Esq.
Cohasset Associates, Inc.
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Contact [log in to unmask] for assistance
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