Definition
Two primary forms of legal professional privilege are recognized under New Zealand law. The two styles are generally referred to as ‘lawyer/client right’ and ‘privilege of litigation’. In both civil and criminal cases, both kinds of privilege are recognised.
There are also other kinds of privilege accepted. The right also would not prohibit a party from revealing a settlement offer offered on a ‘without prejudice except as to costs’ basis if the bid was refused by the party to which the offer was made, but subsequently requests a court order in its favor for legal costs.
There is is privilege in relation to certain particular forms of confidential contact, including communication with religious ministers and with medical practitioners and professional psychologists in criminal proceedings. There is, however, no longer any right in New Zealand to interact between husbands and wives, civil union partners or de facto partners.
Legal professional privilege in the sense of civil litigation
Any person who has privilege over information or communication shall have the right to refuse, in any proceeding, to reveal such information or communication or any opinion developed on the basis thereof. The individual who holds the privilege can also prevent it from being revealed by any other person who also has the information or contact (provided that person did not receive the information or communication in a way that amounted to waiver of the privilege). Furthermore, in a proceeding, a judge may order that proof of a correspondence, knowledge, opinion or record in which a person is privileged may not be presented. A judge may request such an order from the person who has the right, or some other interested party.
The discovery duties of a party in civil matters require the description of certain papers in which privilege is asserted.
These records, however, do not have to be produced by other parties for review. A regime for opposing a claim of privilege is established by the High Court Laws.
Legal professional privilege in the sense of judicial inquiries
Both the prosecution party and the defendant are expected to reveal such details in criminal cases, but not that which is privileged. However, under the Criminal Disclosure Act 2008, if it is appropriate for the defendant to offer an effective defense, a judge can disallow a claim of legal professional privilege by the prosecuting party.
As with civil proceedings (see below), a judge may order that proof of a correspondence, information, opinion or record in which a person has a right may not be presented in a proceeding in a criminal proceeding. A judge may request such an order from the person who has the right, or some other interested party.
Legal professional privilege in the sense of antitrust / competition authority inquiries
In the case of antitrust and competition law cases, the laws that apply in civil matters apply. In addition, in areas that are not ‘procedures’, both lawyer/client privilege and litigation privilege are still recognized by common law. This involves inquiries by, for instance, the Commerce Commission of New Zealand. Where the Commerce Commission is obligated to produce records, it is not appropriate to include certain documents that are shielded by lawyer/client privilege (and litigation privilege, if any).
Legal professional privilege scope
A wide range of interactions, including oral communications and records, are protected by all forms of privilege (except privilege in relation to lawyers’ trust accounts, which applies only in relation to documents). Privilege does not, however, apply to communications made or obtained for a deceptive reason or to help an individual commit an offence.
Lawyer/client privilege covers a client’s correspondence with their legal advisor if the contact is meant to be confidential and is made for the purpose of receiving or obtaining legal advice. This involves documents prepared with a view to being used, but not necessarily used, as a correspondence for the purpose of receiving legal advice or as an aide-memoire for more efficient communication. In 2016, an amendment to the Proof Act clarified that this right extends to an individual seeking legal assistance, whether or not those services are actually accessed by the person. The right is often attached to documents such as drafts and working papers, and fee notes issued by legal advisers have been found to be annexed. Where the agent of either party makes or receives such a message, it will also be protected by this right. The defendant holds the lawyer / client right.
Privilege for litigation is narrower than privilege for lawyers/clients. It safeguards information and communications produced, obtained, compiled or prepared for the dominant purpose of preparing for court proceedings during the duration in which such proceedings are either ongoing or fairly apprehended (the ‘mere chance’ of litigation being inadequate to attract legal professional privilege). The right of litigation covers correspondence between the party and any other individual and the legal adviser of the party and any other individual. It also protects information gathered or prepared by a legal advisor of the party or of the party or by any other person, at the request of the party or at the request of the legal adviser, for the dominant reason of planning proceedings before the court. For example, for the dominant reason of preparing for a proceeding, correspondence between the lawyer of a party and the expert of the party are privileged, as is information gathered and prepared by the expert at the request of the party or its lawyer for the proceeding. Litigation right is owned by the client, as in lawyer / client privilege.
Are legal professional privilege-protected interactions with in-house counsel?
In relation to correspondence with and / or information received, collected or prepared by in-house lawyers, both lawyer / client privilege and litigation privilege will apply if they possess a current practice license and act in their capacity as legal advisor (as opposed to simply an executive of the company). Litigation privilege can also extend in relation to correspondence with or information prepared or gathered by the in-house counsel for the dominant reason of preparing a proceeding, even if the in-house counsel does not serve as legal advisor in their capacity (provided that the contact is between the party and the party’s legal advice or that the information is prepared at the request of the party)
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
Lawyer/client privilege and litigation privilege are both extended to overseas practitioners if they are either a citizen in Australia who is a barrister or lawyer or a person entitled under the laws of another country to do work usually done by a lawyer or patent attorney in New Zealand. This may involve someone in an overseas country with a current practical credential, or equivalent.
When the right is waived?
By express or implied waiver, right is reasonably quickly lost. Privilege may be waived in situations that are inconsistent with a claim of confidentiality by creating or revealing some substantial part of the privileged content. Accordingly, privilege can be waived in relation to information revealed without the explicit requirement that it remain confidential.
Privilege may also be waived by placing in a proceeding the privileged content ‘in question’. This normally happens when in a proceeding a party tries to rely on privileged information (e.g. as justification for an action taken by that party) or when a witness presents evidence that brings the privileged material into the proceeding. In this case, the waiver will require more transparency than the bare truth that the individual acted ‘on legal advice.’