The Law Commission recently released a report that proposes changes to the law of privilege. The proposed changes, if made, will be essential knowledge for in-house counsel and private practice lawyers.
On 22 March 2024, Te Aka Matua o te Ture | the Law Commission's report 'The Third Review of the Evidence Act 2006’ was presented to Parliament. The report considers whether repeal or amendment of any provisions of the Evidence Act 2006 is necessary or desirable.
The report makes 27 key recommendations for reform, ranging from the interaction with te ao Māori to the extension of medical privilege. A proposal of particular interest relates to legal advice privilege, also referred to as “solicitor client” privilege. We consider the Commission’s recommendation and important considerations for our clients and in-house lawyers overseeing contentious matters.
Background: The Evidence Act 2006
Section 54 of the Evidence Act was intended to codify the common law position on legal advice privilege. It provides that communications with legal advisers are privileged provided that the communication was: (a) intended to be confidential; and (b) made in the course of and for the purpose of obtaining (or providing) professional legal services.
Importantly, s 54 refers to “communications” with legal advisers. On a strict interpretation, materials that are not “communicated” will not protected by legal advice privilege. Such material includes, for example, drafts and working papers prepared by clients that were not sent to a lawyer. This raises a risk that sensitive and confidential material that was previously protected by privilege at common law will not be protected under the Act. The common law previously extended legal advice privilege to materials brought into existence for the purpose of obtaining or providing legal services even if the material was not, in fact, communicated. The omission to confer protection upon such documents in the Evidence Act appears contrary to the intention to codify the common law position.
Changes proposed by the Law Commission
The Law Commission has concluded that s 54 ought to be amended to clarify that legal advice privilege applies to documents prepared, but not communicated, for the purposes of obtaining or providing legal advice. Such an amendment would ensure consistency with the previous common law position in this country and as it has developed in overseas jurisdictions such as the United Kingdom and under legislation in Australia. It would also better encourage full and frank communication with lawyers as the overarching purpose of legal advice privilege.
The proposed amendment to s 54 of the Evidence Act would: (a) remove the requirement that the communication be made between the person and the legal adviser; and (b) extend the privilege to any “document” as defined by the Evidence Act (in addition to any communication) otherwise meeting the requirements of s 54.
Key points for in-house lawyers
The proposed amendment to s 54 would clarify an ambiguous area of legal advice privilege to ensure that materials created to obtain or provide legal services do not lose their privileged status by virtue of not having been communicated to or by a legal adviser. This change will reduce ambiguity in the law regarding the privilege attaching to internal business materials, such as draft documents and notes, that have not been provided to a legal adviser.
We encourage in-house lawyers to stay on top of the developments in this area. The present position for legal advice privilege remains intact, which presents a risk that documents that may be expected to be privileged are not. While the common law points to privilege for materials that have not been communicated, lawyers should be aware that the express terms of the Evidence Act require a communication between a client and legal adviser.
We will continue to monitor the progress of the recommendations. In the meantime, get in touch if you have any concerns or queries regarding the application of privilege within your organisation.
You can read the Law Commission’s full report here.
This article was co-authored by Siobhan Pike, a Solicitor in our Litigation team.
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