Proposed Changes to Legal Advice Privilege: Law Commission Report and Implications for In-House Counsel

Law Commission Proposes Changes to Legal Advice Privilege in Recent Report

The Law Commission recently released a report proposing changes to the law of privilege, specifically focusing on legal advice privilege. The report, titled ‘The Third Review of the Evidence Act 2006,’ was presented to Parliament on 22 March 2024 and contains 27 key recommendations for reform.

One of the key proposals in the report relates to legal advice privilege, also known as solicitor-client privilege. Currently, Section 54 of the Evidence Act 2006 codifies the common law position on legal advice privilege, stating that communications with legal advisers are privileged if they were intended to be confidential and made in the course of obtaining or providing professional legal services.

However, a potential loophole exists in the current legislation, as materials that are not communicated to a legal adviser may not be protected by legal advice privilege. This includes drafts and working papers prepared by clients that were not sent to a lawyer. The Law Commission has recommended amending Section 54 to clarify that legal advice privilege applies to documents prepared for the purpose of obtaining or providing legal advice, even if they were not communicated to a legal adviser.

The proposed amendment would remove the requirement that the communication be made between the person and the legal adviser and extend the privilege to any document meeting the requirements of Section 54. This change aims to align New Zealand’s legal advice privilege laws with those in other jurisdictions such as the United Kingdom and Australia.

For in-house lawyers overseeing contentious matters, staying informed about these proposed changes is crucial. The clarification of legal advice privilege regarding internal business materials, such as draft documents and notes, will reduce ambiguity and ensure that privileged status is not lost due to lack of communication with a legal adviser.

As the recommendations progress, in-house lawyers are encouraged to monitor developments in this area and seek guidance on the application of privilege within their organizations. The full Law Commission report can be accessed online for further information.

In conclusion, the proposed changes to legal advice privilege outlined in the Law Commission’s report have significant implications for in-house counsel and private practice lawyers. Staying informed and proactive in understanding these changes will be essential for navigating privilege issues effectively in the future.