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Thursday 13 December 2012

12-314MR ASIC releases information sheet on legal professional privilege

ASIC today released an information sheet outlining the approach it takes on claims of legal professional privilege (LPP).

ASIC 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 LPP does not have to be provided.

Issues, though, 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.

ASIC Deputy Chairman Belinda Gibson said: ‘ASIC is seeking to provide a nationally consistent framework for the making and assessment of claims of legal professional privilege. The release of this document is part of ASIC’s plan to enhance the transparency of its enforcement function.

‘It is hoped the information sheet will also encourage, in some circumstances, the voluntary disclosure to ASIC of privileged information under a confidentiality agreement that restricts ASIC’s use of that information.’

The early disclosure of LPP information to ASIC (on a confidential and restrictive basis) can sometimes help in identifying the critical issues in an investigation and in producing an effective and efficient conclusion to the investigation. It will often be in the interests of ASIC and the holder of the LPP information for this to occur.

Read Information Sheet 165 Claims of legal professional privilege (INFO 165)

Background

Legal professional privilege is a legal principle protecting the confidentiality of communications passing between a legal practitioner and client where those communications have been made or brought into existence for the dominant purpose of the client obtaining, or the legal practitioner giving, legal advice or for use in existing or contemplated judicial or quasi-judicial proceedings. Legal professional privilege also attaches to confidential communications passing between the lawyer or client and third parties if made for the dominant purpose of proceedings which are in existence or contemplation at the time of the communication.

Download

  • Information Sheet 145 ASIC's compulsory information-gathering powers (INFO 145)
  • Information Sheet 151 ASIC’s approach to enforcement (INFO 151)
Last updated: 13/12/2012 12:00