Authorities and litigants (especially class action law firms) will seek access to these documents in order to create a related case. While the disclosure of privileged documents may have achieved the desired objective of achieving a satisfactory result in a regulatory investigation context, the same documents may provide unnecessary ammunition in a civil case. ASIC did not provide any indication of its intention to negotiate the terms of the standard voluntary disclosure agreement form. However, if you want to make a deal, you may be able to negotiate additional terms to further protect the confidentiality and privilege of your documents. This article was first published in the Financial Services Newsletter, Vol 11 No 9, May 2013 ASIC may choose to accept inside information (or information purported to be privileged) on a confidential basis voluntarily provided by a notification recipient or other disclosing party. ASIC`s standard agreement, the LPP Voluntary Confidential Disclosure Agreement, sets out the conditions under which ASIC may choose to accept this information. Recipients of mandatory information requests from the Australian Securities and Investments Commission (ASIC) are not required to provide ASIC with information that may be the subject of a professional lien (LPP) claim. The LPP applies to confidential oral and written communications with legal counsel that have been developed to obtain or receive legal advice or to prepare for actual or anticipated litigation. ASIC recently released Fact Sheet 165: Claims on A Lawyer`s Privilege (the Fact Sheet) which outlines ASIC`s approach to managing lawyers` lien claims. ASIC indicated that it could accept, on a confidential basis, the information that was the subject of the LPP under a “voluntary confidential disclosure agreement of the LPP”, asic accepting that the disclosure of information to ASIC would not be a waiver of a privilege in force at the time of disclosure. Disclosure to ASIC of legal advice or other information or notices subject to attorney privilege may, in certain circumstances, assist ASIC and the recipient of the information in more effectively resolving an ASIC investigation or monitoring.
For example, a company may have opened an internal investigation into an alleged breach of the law and sought legal advice or other notifications subject to LPP to support that investigation. It may be helpful to provide such advice or report to ASIC to assist in its investigation. Caution should be exercised, however, as the risks of waiving confidential information authorizations continue to continue. . . .