Lex Mundi Global Attorney-Client Privilege Guide |
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New Zealand |
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(Asia Pacific)
Firm
Simpson Grierson
Contributors
Ben Upton |
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| Is the ACP recognized in your jurisdiction? | Yes. The equivalent in New Zealand is called Legal Advice Privilege (“LAP”). LAP is codified under s 54 of the Evidence Act 2006. LAP protects communications between a person and a legal advisor provided that the communication was:
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| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Not applicable. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | There is no distinction in the application of LAP between civil and criminal proceedings. Under s 67 of the Evidence Act 2006, a judge must disallow a claim of LAP if satisfied that the communication was made or received for a dishonest purpose, or to enable anyone to commit what the person claiming the privilege knew, or reasonably ought to have known, was an offense. While the Evidence Act does not define “dishonest purpose”, it has been held to include “all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and shams”. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | There is a degree of uncertainty in New Zealand as to who constitutes a “client” for the purposes of LAP where the client is a large corporate entity. The New Zealand courts have not explicitly followed the English law approach which has limited the meaning of ‘client’ to only those within the client organization who is authorized to seek and receive legal advice on its behalf. Pending further clarification from the New Zealand courts, the meaning of ‘client’ in respect of LAP currently appears to encompass all individuals within a corporate organization with whom lawyers communicate in relation to the organization’s request for legal advice. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No: in-house lawyers communicating internally with other employees of their common employer come within the scope of the privilege, provided they have a current practicing certificate and the communications relating to the provision of professional legal services. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Not applicable. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Not applicable. |
| Is the common interest doctrine recognized in your jurisdiction? | Yes: common interest privilege, as well as joint interest privilege, are recognized in New Zealand. |
| How is the doctrine articulated in your jurisdiction? | Common interest privilege arises where there has been a disclosure of protected material to a third party who has a sufficient common interest in the subject. Whether or not the parties share a common interest is assessed at the date the material is communicated to the third party. The joint privilege arises where two or more parties jointly retain the same lawyer or have a joint interest in the subject matter of the communication. This is judged at the time the communication came into existence. |
| Must a common interest agreement be in writing? | There is no requirement for a common interest agreement to be in writing, however, it is always beneficial to demonstrate that a common interest exists through an express written statement. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Litigation funding is permitted in New Zealand, just as it is in other common law jurisdictions. However, the law in the area is not particularly well developed and relies principally on case law and procedural rules that address representative actions, as opposed to all aspects of class action litigation and litigation funding. The Law Commission in New Zealand is currently undertaking a review of the law relating to class actions and litigation funding in New Zealand, which includes considering whether, and to what extent litigation funding should be regulated, however as yet, there is no regulation of the industry. Remedies against funders may be available under the torts of maintenance and champerty. The Court has also expressly confirmed that they have the power to prevent abuses of process arising from commercial third-party funding arrangements which amount to assignments of a cause of action to a third party. Costs awards can also be made against litigation funders. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No, this has not been directly addressed by the courts as yet, however communications between litigations funders, counsel, and plaintiffs would likely be covered by litigation privilege, provided that legal proceedings are on foot or are reasonably contemplated. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes: A Judge must disallow a claim of privilege in respect of a communication or information if satisfied there is a prima facie case that the communication was made or received, or the information was compiled or prepared, for a dishonest purpose or to enable or aid anyone to commit or plan to commit what the person claiming the privilege knew or reasonably should have known, to be an offense. A Judge may also disallow a claim of privilege in respect of a communication or information if the Judge is of the opinion that evidence of the communication of information is necessary to enable the defendant in a criminal proceeding to present an effective defense. There are also professional obligations or discretions that apply to lawyers. Disclosure of confidential information is required where the information relates to the anticipated or proposed commission of a crime that is punishable by imprisonment for 3 years or more. Disclosure is permitted where:
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| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Section 67 Evidence Act 2006. See generally the exceptions in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (SR 2008/214), Schedule, rule 8. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes. Preparatory privilege (also known as litigation privilege) is codified under s 56 of the Evidence Act 2006. |
| What are the elements of the protection in your jurisdiction? | Preparatory privilege protects both communications with third parties, and information compiled or prepared by the party or legal advisor or anyone else at the advisor’s request, provided that the communications or information are made, received or prepared for the dominant purpose of preparing for a proceeding or apprehended proceeding. The privilege holder must be a party to the proceeding or reasonably contemplate being a party to an apprehended proceeding. The mere possibility of litigation is not enough to trigger the privilege – it must be reasonably apprehended. The test for this is whether a reasonable person in the shoes of the party, with the same information as that party, would regard litigation as probable. |
| Does your jurisdiction recognize an accountant-client privilege? | There is no general privilege attached to advice from an accountant to their client, however, there is a statutory right of non-disclosure that applies to communications between advisors and taxpayers for the main purpose of providing or receiving tax advice. |
| Does your jurisdiction recognize a mediation privilege? | Yes: confidential communications made as the result of attempts to mediate or negotiate the settlement of civil disputes are privileged. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, see above, however: agreements containing the terms of the settlement are not, privileged. There is a further exclusion from privilege in respect of the use in a proceeding of a communication or document made or prepared in connection with any settlement negotiations or mediation if the court considers that, in the interests of justice, the need for the communication or document to be disclosed in the proceeding outweighs the need for the privilege, taking into account the particular nature and benefit of the settlement negotiations or mediation. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes. The equivalent in New Zealand is called Legal Advice Privilege (“LAP”). LAP is codified under s 54 of the Evidence Act 2006. LAP protects communications between a person and a legal advisor provided that the communication was:
- intended to be confidential; and
- made in the course of, and for the purpose of, requesting, obtaining, or giving professional legal services. A ‘legal advisor’ is defined to include patent attorneys and lawyers who are qualified to practice as barristers and/or solicitors in New Zealand as well as registered lawyers from many (but not all) jurisdictions outside of New Zealand.
Not applicable.
There is no distinction in the application of LAP between civil and criminal proceedings.
Under s 67 of the Evidence Act 2006, a judge must disallow a claim of LAP if satisfied that the communication was made or received for a dishonest purpose, or to enable anyone to commit what the person claiming the privilege knew, or reasonably ought to have known, was an offense. While the Evidence Act does not define “dishonest purpose”, it has been held to include “all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and shams”.
There is a degree of uncertainty in New Zealand as to who constitutes a “client” for the purposes of LAP where the client is a large corporate entity. The New Zealand courts have not explicitly followed the English law approach which has limited the meaning of ‘client’ to only those within the client organization who is authorized to seek and receive legal advice on its behalf.
Pending further clarification from the New Zealand courts, the meaning of ‘client’ in respect of LAP currently appears to encompass all individuals within a corporate organization with whom lawyers communicate in relation to the organization’s request for legal advice.
No: in-house lawyers communicating internally with other employees of their common employer come within the scope of the privilege, provided they have a current practicing certificate and the communications relating to the provision of professional legal services.
Not applicable.
Not applicable.
Yes: common interest privilege, as well as joint interest privilege, are recognized in New Zealand.
Common interest privilege arises where there has been a disclosure of protected material to a third party who has a sufficient common interest in the subject. Whether or not the parties share a common interest is assessed at the date the material is communicated to the third party.
The joint privilege arises where two or more parties jointly retain the same lawyer or have a joint interest in the subject matter of the communication. This is judged at the time the communication came into existence.
There is no requirement for a common interest agreement to be in writing, however, it is always beneficial to demonstrate that a common interest exists through an express written statement.
Litigation funding is permitted in New Zealand, just as it is in other common law jurisdictions. However, the law in the area is not particularly well developed and relies principally on case law and procedural rules that address representative actions, as opposed to all aspects of class action litigation and litigation funding. The Law Commission in New Zealand is currently undertaking a review of the law relating to class actions and litigation funding in New Zealand, which includes considering whether, and to what extent litigation funding should be regulated, however as yet, there is no regulation of the industry.
Remedies against funders may be available under the torts of maintenance and champerty. The Court has also expressly confirmed that they have the power to prevent abuses of process arising from commercial third-party funding arrangements which amount to assignments of a cause of action to a third party. Costs awards can also be made against litigation funders.
No, this has not been directly addressed by the courts as yet, however communications between litigations funders, counsel, and plaintiffs would likely be covered by litigation privilege, provided that legal proceedings are on foot or are reasonably contemplated.
Yes: A Judge must disallow a claim of privilege in respect of a communication or information if satisfied there is a prima facie case that the communication was made or received, or the information was compiled or prepared, for a dishonest purpose or to enable or aid anyone to commit or plan to commit what the person claiming the privilege knew or reasonably should have known, to be an offense.
A Judge may also disallow a claim of privilege in respect of a communication or information if the Judge is of the opinion that evidence of the communication of information is necessary to enable the defendant in a criminal proceeding to present an effective defense.
There are also professional obligations or discretions that apply to lawyers.
Disclosure of confidential information is required where the information relates to the anticipated or proposed commission of a crime that is punishable by imprisonment for 3 years or more.
Disclosure is permitted where:
- the information relates to the anticipated commission of a crime or fraud; and/or
- the lawyer reasonably believes that the lawyer’s services have been used by the client to perpetrate or conceal a crime or fraud and disclosure is required to prevent, mitigate, or rectify substantial injury to the interests, property, or reputation of another person that is reasonably likely to result or has resulted from the client’s commission of the crime or fraud
Section 67 Evidence Act 2006.
See generally the exceptions in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (SR 2008/214), Schedule, rule 8.
Yes. Preparatory privilege (also known as litigation privilege) is codified under s 56 of the Evidence Act 2006.
Preparatory privilege protects both communications with third parties, and information compiled or prepared by the party or legal advisor or anyone else at the advisor’s request, provided that the communications or information are made, received or prepared for the dominant purpose of preparing for a proceeding or apprehended proceeding.
The privilege holder must be a party to the proceeding or reasonably contemplate being a party to an apprehended proceeding. The mere possibility of litigation is not enough to trigger the privilege – it must be reasonably apprehended. The test for this is whether a reasonable person in the shoes of the party, with the same information as that party, would regard litigation as probable.
There is no general privilege attached to advice from an accountant to their client, however, there is a statutory right of non-disclosure that applies to communications between advisors and taxpayers for the main purpose of providing or receiving tax advice.
Yes: confidential communications made as the result of attempts to mediate or negotiate the settlement of civil disputes are privileged.
Yes, see above, however: agreements containing the terms of the settlement are not, privileged.
There is a further exclusion from privilege in respect of the use in a proceeding of a communication or document made or prepared in connection with any settlement negotiations or mediation if the court considers that, in the interests of justice, the need for the communication or document to be disclosed in the proceeding outweighs the need for the privilege, taking into account the particular nature and benefit of the settlement negotiations or mediation.