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Australia's ASIC explains Legal Professional Privilege

Editorial Staff

The Australian Securities and Investments Commission "has compulsory information gathering powers to require disclosure of information. This power may be exercised in respect of our regulatory work. However, information that attracts a valid claim of Legal Professional Privilege (LPP) does not have to be provided." ASIC has released an information sheet explaining the position.

ASIC says "Issues can arise on whether a claim of LPP has been properly established and whether LPP information can be provided to ASIC on a limited and confidential basis.

The information sheet covers:

* an explanation of when a claim of LPP might arise
* an explanation of who can make a claim of LPP
* an overview of a privilege holder’s options if LPP applies
* a description of how to make an LPP claim
* the options available to a claimant if ASIC does not accept an LPP claim
* information about making a voluntary and confidential disclosure of privileged information to ASIC, and
* a description of the situations where ASIC will not accept a claim of LPP.

The document (http://www.asic.gov.au/asic/as...) says:

"Essentially, there are two distinct categories of LPP:

* advice privilege, which applies to confidential information (communications and documents) brought into existence for the dominant purpose of giving or obtaining legal advice

* litigation privilege, which applies to confidential information (communications and documents) brought into existence for the dominant purpose of a client being provided with professional legal services in relation to actual or anticipated legal proceedings involving the client as a party."

The privilege holder is generally the person who:
* in respect of advice privilege, is the client for whom the legal advice is being given or obtained
* in respect of litigation privilege, is the client who is involved as a party in actual legal proceedings or who is anticipated to be involved as a party in anticipated legal proceedings.

ASIC can require a person to attend before it to give information in an oral examination. ASIC says

"If, during a compulsory examination conducted by ASIC, you seek to claim LPP over information responsive to an ASIC question you should provide to ASIC the details specified below during the examination or at such later date as may be specified by ASIC:

* the names of all parties who communicated the information or to whom the information has been communicated, together with their positions and employer (if any)
* the date of the communication
* the category of LPP claimed (advice privilege or litigation privilege) and the basis on which the privilege is claimed
* the name of all persons who claim the right to assert the privilege (including any third parties on whose behalf the privilege claim is made)* whether the information has been recorded in part or in whole in a tangible form (e.g. electronic or hard copy).

In the case of a third-party LPP claim, you should also provide the following details to ASIC in respect of the information:

* the identity of the privilege holder
* the last known contact details of the privilege holder
* an explanation of the circumstances by which the information came to be known by you.

If documents are claimed to be covered by LPP, they must not be destroyed."