THE STAR ENTERTAINMENT GROUP LIMITED Following a number of recent cases in which parties to regulatory proceedings and investigations have been found to have incorrectly claimed legal professional privilege (LPP), the NSW gambling regulator has found that senior lawyers at
These findings, documented in a report released earlier this month (Report), were made during the regulator's inquiry into The Star under sections 143 and 143A of the
The Report found that the erroneous claims of legal professional privilege were consistent with The Star's lawyers' misunderstanding of the circumstances in which it could be claimed.
Different members of in-house counsel for The Star admitted in evidence that there was a practice of marking documents and communications as "privileged" without turning their minds to whether there was a proper basis to do so. The Report noted that this created a risk that a person reviewing the document would assume it is privileged and refrain from producing that document in response to a regulator's request, in spite of no thought having been applied to the question of whether or not there was a proper basis to claim privilege.
Background
The Star engaged
The final reports issued by
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the observation that people could walk into The Star's casinos with hundreds of thousands of dollars in cash and not be assessed as high risk for that reason alone
- that The Star's AML/CTF program did not consider counter-terrorism financing at all
- that there was no documented money laundering or terrorism financing risk assessment or methodology in relation to junkets
- that there was inadequate resourcing allocated to the AML/CTF program.
The Star resisted producing the
The Report found that there was no reason for The Star claiming LPP in respect of the
LPP - when does it apply?
LPP protects confidential communications and confidential documents passing between a lawyer and a client, made for the dominant purpose of the lawyer providing and or the client seeking legal advice or professional legal services, or for use in current or anticipated litigation.
Where legal advice is provided by an in-house lawyer, it must be shown that the document was brought into existence in the course of the performance of the lawyer's professional role.
Simply marking documents as "subject to legal professional privilege" will not be determinative.
Key learnings
In the current regulatory environment, and given the potential reputational damage to in-house counsel being named in reports for 'wrongly' claiming LPP, it is recommended that in-house counsel review the circumstances in which communications and corporate documents will attract the protection of LPP. Other officers and employees should seek legal advice before claiming LPP in any proceedings or regulatory investigations.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
Ms
Holding Redlich
Level 8
3000
Tel: 39321 9999
Fax: 39321 9900
E-mail: inquiries@holdingredlich.com.au
URL: www.holdingredlich.com.au
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