Documents between clients and their lawyers are generally
covered by legal professional privilege. This means that these
documents are private and that they do not have to be provided to
the opposing party during litigation.
However, consider this: what if a document is utilised not only
by the client and their lawyer but also by a third party advisor
such as an accountant, financial advisor, merchant banker, or due
diligence specialist? Is the document still privileged?
This was the issue which had to be determined by the Federal
Court of Australia in the recent Asahi Holdings case.[1] The
parties asked the court to determine whether 8 chains of email
communications and documents were privileged. Ultimately, the court
determined that only 3 of the 8 chains were entirely privileged.
This suggests that courts are reluctant to extend privilege beyond
standard client-lawyer communications.
