Asic Voluntary Confidential Legal Professional Privilege Disclosure Agreement

ASIC has not given any indication of its intention to negotiate the terms of the standard self-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. There are two main categories of LPP with respect to confidential information (communications and documents): ASIC may choose to accept inside information (or information considered inside) voluntarily provided by a notice recipient or other disclosing party on a confidential basis. ASIC`s standard agreement, the LPP Confidential Voluntary Disclosure Agreement, sets out the conditions under which ASIC may choose to accept this information. The agreement provides that: If you are the recipient of the notice and you make a request for privilege in respect of a document (LPP document) that has not been accepted by ASIC or determined in your favour: Although the position may not be ideal and ASIC has access to documents and information that it would not normally have, the party is always able to: safeguard their right to exercise legal privilege at a later date and not incur prohibitive or unnecessary expenses. The party just needs to focus on the documents and information that are really important, and that`s something it should be able to do. As a preferred document holder, you have the following three options for responding to an ASIC communication: In the case of an external administration of a company in which a receiver and a liquidator or director have been appointed at the same time, the ASIC`s position is that, subject to the conditions of the certificate of appointment of the insolvency administrator, the insolvency administrator has the right to exercise a lien (excluding the liquidator or administrator) in to assert or waive communications concerning an asset that is part of the secured asset. If it is determined that a claim of privilege was made to obstruct an ASIC investigation or intentionally avoid compliance with a notice, this may constitute a criminal offence under the ASIC Act. In addition, when protecting the confidentiality agreement, the disclosing party runs the risk that: If you make a claim to LPP as a lien holder or assert LPP on behalf of a third party, you must provide ASIC with all non-privileged information by the specified date. Failure to comply is likely to be a violation of ASIC and may constitute a criminal offense. If you wish to retain ASIC information and request an LPP, ASIC requires a message recipient to complete a calendar that lists each document and provides certain information, including the names of all authors and recipients, as well as their positions and employment (if any), the claimed category of LPP and its basis, the names of the persons, who claim the privilege (including third parties), as well as the location and form of the document. For oral inquiries provided in response to a question from ASIC during a mandatory review, ASIC requires the interviewee to provide certain information, either during the audit or at a later date determined by ASIC, including the names of all parties who provided the information or to whom the information was disclosed, and their positions and employment relationship (if: available); the claimed category of LPP and its basis, the names of the persons claiming the privilege (including third parties) and whether the information has been recorded in whole or in part in tangible form.

Voluntary Disclosure Agreement The Voluntary Disclosure Agreement is an agreement that can be used if the recipient of the notice allows ASIC access to the preferred material. In accordance with the Voluntary Disclosure Agreement, ASIC and the Privilege Holder agree that the disclosure of the information to ASIC does not constitute a waiver of the privilege existing at the time of disclosure. ASIC`s raison d`ĂȘtre for introducing the Self-Disclosure Agreement is that the adoption of privileged records is in the public interest, as it will help to draw effective and efficient conclusions about investigations and identify critical issues. As mentioned above, there will be times when it will be in your best interest to share inside information with ASIC. However, you should be aware of at least the following: As the recipient of the notification, you must provide ASIC with all relevant information no later than the date specified in the mandatory notice, for which you are not claiming privilege on your own behalf and for which you are not asserting an LPP claim from a third party. Failure to do so will be considered non-compliance with ASIC`s opinion. In an environment where resources are limited for a Party, appropriate but pragmatic management of ASIC`s mandatory production communications is crucial to ensure that the Party`s interests are protected and that all inside information is treated appropriately. If you are the recipient of an ASIC notice, Ash St. Legal & Advisory can help you formulate a commercial and comprehensive response to ASIC.

Justice O`Callaghan of the Federal Court concluded that the IR`s evidence was insufficient to support his claim of privilege. To support his claim of privilege, RI submitted only “hearsay and evidence of opinion” from his current lawyer, who was not his lawyer when the document was created. No evidence was also presented by THE CEO of RI, who was closely involved in the process that led to the preparation of the report. The court noted that the exact role of the in-house counsel who requested the report was unclear. An alternative to the party`s disposition is to enter into an agreement with ASIC to deal with the submission of the requested documents and information and to preserve the right to exercise legal privilege. In this type of scenario, the disclosure agreement is not the right document to deal with the position. ASIC has released new guidelines outlining its approach to solicitor-client privilege claims. By presenting a process for customers to voluntarily share inside information with ASIC, ASIC hopes that the publication will encourage recipients of ASIC communications to make such disclosure.

However, there is a real risk that the provision of a privileged document to ASIC will result in a waiver to a third party. For this reason, King & Wood Mallesons believes that this option is unlikely to be used in any meaningful way by its customers. In addition, Justice O`Callaghan rejected an argument that an email sent to ASIC when RI first produced the report introduced privileges. The email stated that the document was provided on a confidential basis and “in accordance with solicitor-client privilege.” The court accepted ASIC`s assertion that, in its Opinion 33, ASIC had “communicated the basis on which it could consent to the submission of protected documents, and the IR had apparently decided to circumvent this process.” Solicitor-client privilege is a common law that allows individuals and organizations to receive confidential and exclusive legal advice. While ASIC has broad information-gathering powers, it does not have the power to force you to hand over documents that are protected by a valid solicitor-client privilege (BPA) claim. Disclosure Agreements and Production Agreements ASIC set out its position on legal privilege and the procedure for making a claim. ASIC also has a standard disclosure agreement (disclosure agreement) to deal with disclosure and solicitor-client privilege. [5] Summary When ASIC seeks to enter into a voluntary disclosure agreement, you should carefully consider the following: Perspectives: Parties subject to ASIC oversight must be prepared for ASIC to rigorously consider requests for privileges in the context of regulatory investigations. In order to avoid unnecessary delays and costs in defending against claims for privilege in court, the parties should endeavour to provide ASIC with sufficient information based on such claims from the outset.

In two recent cases decided by the Australian Federal Court of Justice, ASIC has signalled a stricter approach to parties` compliance with mandatory notifications and the regulator`s willingness to challenge broad or vague claims of solicitor-client privilege in court. ASIC hopes to encourage the use of this agreement, but acknowledges that it will only be used in “certain circumstances”.