Lawyer NEWS - Litigation Update
Evidence Amendment Act 2007 (NSW) - Anticipated amendments relating to client legal privilege.
In Brief
Amendments to the Evidence Act 1995 (NSW) will make important changes to the application of client legal privilege in New South Wales. When the amendments come into force, legal advice provided by overseas lawyers and by in-house counsel will attract client legal privilege as will documents prepared by a third party for the dominant purpose of obtaining legal advice. The circumstances by which client legal privilege can be lost will also be expanded.
Introduction
The Evidence Amendment Act 2007 (NSW) received royal assent on 1 November 2007 and is due to come into force on a date to be determined after May 2008.
This Act makes a number of amendments to the Evidence Act 1995 (NSW) in order to implement the recommendations made in a joint report published by the Australian, New South Wales and Victorian Law Reform Commissions in 2005 (Report). These amendments include some important changes to the application of client legal privilege.
Legal advice privilege to extend to advice given by overseas lawyers
A "lawyer" is currently defined in the Dictionary of the Evidence Act 1995 (NSW) as a barrister or solicitor. When the amendments come into force the definition of a "lawyer", for the purposes of client legal privilege, will include both Australian and overseas lawyers or their agents or employees. This amendment will make the Act consistent with the judgment of the ACT Court of Appeal in Commonwealth v Vance that it is the substance of the relationship that is important rather than whether the lawyer holds a practising certificate.
Position clarified in relation to in-house counsel
There has been some uncertainty in the business community as to whether, and in what circumstances, the legal services provided by in-house counsel attracts client legal privilege. The amendments to the Act include an amendment to the definition of "client" for the purposes of client legal privilege so that a "client" of a lawyer will include a person or body who employs a lawyer to provide legal services. This new definition will make it clear that client legal privilege extends to communications by in-house counsel.
Legal advice privilege to extend to certain documents prepared by a third party
Certain confidential communications and documents prepared by a client or their lawyer for the dominant purpose of providing legal advice are currently privileged. The amendments will extend this privilege to documents prepared by a third party provided these documents have been prepared for the dominant purpose of obtaining legal advice.
Extension of circumstances by which client legal privilege can be lost
As the Act is presently worded, if a client knowingly and voluntarily discloses the substance of the privileged information the privilege is considered to be waived. The amendments potentially expand the circumstances in which privilege may be lost by specifying that if the client or party concerned has acted in a way that is inconsistent with the maintenance of the privilege this privilege will be lost. The intention behind this amendment is to make the test in the Act consistent with test under the general law in that privilege may now be lost as a result of conduct other than disclosure of the privileged communications.
Key points – Amendments relating to client legal privilege
- The amendments reflect the view that it is the substance of the relationship that is important, rather than whether the lawyer holds a practising certificate. The Act will now state clearly that client legal privilege applies to legal advice provided by overseas lawyers and by in-house counsel.
- The Act will also now state clearly that client legal privilege will extend to confidential documents prepared by a third party if prepared for the dominant purpose of obtaining legal advice.
- Privilege will be lost if a client or party concerned has acted in a way that is inconsistent with the maintenance of the privilege.
- It is important to recall that the Evidence Act applies only to the adducing of evidence and (by virtue of the civil procedure rules) to pre-trial processes. Otherwise, the general law in relation to privilege continues to govern the issue of what is privileged and how privilege may be lost.
View this article HERE.
Source: Blake Dawson Waldron.