Legal professional privilege is a common law right that allows individuals and organisations to obtain confidential and protected legal advice.
On its website, the Australian Securities and Investments Commission (ASIC) outlines how it deals with claims of legal professional privilege.
ASIC’s compulsory powers
ASIC has a range of compulsory information-gathering powers which it uses in surveillance and investigations. These powers are used to require a person to:
- Provide ASIC with documents and information.
- Attend an examination to answer questions and provide assistance.
If you have legal professional privilege for specific information requested, you may be able to legally withhold the information from ASIC, or to provide the information on a limited or confidential basis.
Different types of legal professional privilege (LPP)
There are two main categories of LPP relating to confidential information (communications and documents):
- Advice privilege applies to confidential information used to give or obtain legal advice.
- Litigation privilege applies to confidential information used to provide or solicit professional legal services in relation to actual or anticipated legal proceedings involving the client as a party.
Making a claim of LPP to ASIC
A claim of LPP can be made by:
- The privilege holder (the client who received legal advice), or
- Someone asserting the LPP claim on behalf of the privilege holder (third-party LPP claim).
The information required to support claims of LPP will vary depending on whether the claim relates to information contained in documents or oral information. See section 3 of the ASIC information sheet for further information.
Section 4 highlights the key considerations concerning retention of the information over which LPP is claimed.
Requirements also vary for third-party claims, as addressed in the sections referenced above.
Voluntary confidential disclosure of LPP information
In some cases, ASIC may accept privileged information voluntarily provided by a notice recipient or other disclosing party, if it will assist an investigation and is in the public interest.
This information will be treated confidentially, and voluntary disclosure is not a waiver of privilege. ASIC will not be able to use this information as evidence in any other matter other than the one where the privilege holder has consented to its tender as evidence.
What if ASIC does not accept the claim?
ASIC may reject a claim if it believes it is invalid or there is insufficient supporting evidence.
If your claim is rejected, you can either:
- Provide the requested information to ASIC.
- Enter a voluntary LPP dispute resolution process with ASIC.
- Apply to the court seeking a declaration that the information is privileged.
If it is determined that a claim of privilege has been made to hinder an ASIC investigation or intentionally avoid compliance with a notice, this may constitute an offence under the ASIC Act.
Information over which LPP is not claimed
All information for which LPP has not been claimed must be provided to ASIC by or before the date specified in the compulsory notice, otherwise this will be considered a breach of the ASIC Act and may be a criminal offence.
Conclusion
If you have received a notice from ASIC requiring the provision of information or attendance at an examination, some information may be protected by legal professional privilege. You can make a claim to ASIC if you believe this to be the case, but you may be liable to criminal proceedings if it is found that this was done simply to obstruct an investigation.
