To support lawyers in handling the often tricky overlap between client legal privilege and federal regulator inquiries, the Law Council of Australia has published new practical guidance.
The Law Council of Australia has released new guidance to support legal practitioners in navigating the often complex intersection of client legal privilege (CLP) and requests for information or documents from federal regulators.
Juliana Warner, president of the Law Council of Australia, highlighted the critical importance of this guidance, warning that disputes can emerge when federal regulators request material protected by CLP.
“Tensions can arise when federal regulators seek material that is exempt from production obligations because it is subject to CLP,” Warner said.
CLP is fundamental to the Australian legal system, safeguarding open communication between clients and lawyers and allowing legal advice to be given freely, without concern that it might be disclosed to regulators or third parties.
In this context, Warner stressed that respecting CLP is essential, while also acknowledging the delicate balancing act required when it intersects with the information-collection responsibilities of government agencies and regulators.
“CLP must always be respected. There is a complex balancing act that must be undertaken when it comes to CLP and the information collection role of government agencies and regulators,” Warner said.
“Client legal privilege means a lawyer cannot disclose certain communications or documents to a regulator because the client is legally entitled to keep them confidential.
“This can create uncertainty about the scope of assistance a lawyer can provide, and federal regulators may feel they are not receiving information they would ordinarily expect.”
Warner shared that the release of the guidance note on client legal privilege and federal regulators provides a practical resource for both legal professionals and federal agencies, clarifying obligations and responsibilities when privileged material is requested.
“We aim to provide a resource for both lawyers and federal regulators that can clarify obligations and responsibilities,” Warner said.
“We want to promote lawful compliance while respecting – and protecting – people’s rights, which is the fundamental principle behind the doctrine of legal privilege.”
A key feature of the guidance, Warner highlighted, is a practical checklist for legal practitioners, designed to guide responses to information requests from federal regulators while ensuring clients’ legal rights are protected.
“The guidance note includes a checklist for legal practitioners to assist in responding to information requests from a federal regulator,” Warner said.
“The checklist can help practitioners effectively respond to statutory or voluntary information requests from Commonwealth regulators, such as the Australian Taxation Office, while preserving their client’s legal rights, including CLP.”
