ASIC has released Information Sheet 165 Claims of legal professional privilege (INFO 165) which sets out ASIC’s approach to claims of legal professional privilege over documents that would otherwise be subject to disclosure to ASIC under a statutory notice from ASIC.

If documents are privileged (because they constitute legal advice to you in anticipation of legal action) ASIC is not entitled to see them.

Although ASIC encourages the voluntary disclosure to ASIC of privileged information, providing documents to ASIC could enable a third party to claim that you have waived legal professional privilege. And ASIC may not accept your claim of privilege.

The Information Sheet seeks to prescribe a protocol for the identification of, and the claiming of, legal professional privilege over documents.

Companies (especially ASIC licensees) should have a procedure for responding to ASIC, ACCC and ATO investigations.

That procedure should include having your lawyers help respond to ASIC notices to produce and attend inspections to determine whether documents are privileged.