Is there privilege before there’s a customer?

The Court found there wasn’t any reason that the company of attorneys couldn’t be both the customer and the attorney in the period ahead of it had been kept by the first customer. The choice is of special relevance to class action attorneys and is a fascinating development in the region of privilege.

Background

The Firm and the Funder maintained legal professional privilege within this info.

Documents in question

Back in June 2015 a range of articles have been printed from the media concerning allegations made by an employee of ioof shares lawsuit, containing asserts that IOOF were included in insider trading and plagiarism. This then caused a fall in stocks which continued to fall for a further time period. In this time, the Firm didn’t have a customer with regard to the class actions against IOOF, also so were named applicant from the arrangement with the Funder together with the intention which the upcoming plaintiff may also signal the agreement once the matter improved. This period is known in the ruling as the”First Period.”

The Firm asserted that these records were made for the dominant purpose of obtaining legal counsel from Counsel in the Firm with regard to a confidentiality issue which arose from their communications using the IOOF worker.

About the 17 July 2015, the Firm received directions from its very first customer to research the course action on its own behalf. Records were prepared as part of this analysis including briefs and document notes of communicating with counsel, copies of memorandum of advice from counsel regarding chances of succeeding, internal memos and file notes of conversation with the IOOF worker, along with communications with all the Funder regarding prospects of succeeding. This period is known in the ruling as the”Second Period.”

The Firm publicly declared the investigation to the course actions in October 2015 and printed an internet registration portalsite, where additional customers enrolled their attention into the prospective class actions. After the constitution of the internet portal, files were made as part of this preparatory work for its possible class actions, including documents concerning registrations, and communications with all the IOOF worker and Counsel in the Firm. This period is known in the ruling because the”Third Period.”

The Funder also made independent claims for liberty under section 118 and section 119 of this Act over files containing communications together with the Firm.

IOOF question

In connection to the documents prepared during the First Period, such as those prepared by Counsel in the Firm in providing guidance to the Firm, IOOF maintained the records weren’t subject to privilege since there was no attorney and client connection. Further, IOOF filed that if there was discovered to be a lawyer and customer connection, the dominant goal wasn’t to providing legal advice, but instead to”work up” a possible class action and also to help in discussions with the Funder in connection with financing.

IOOF filed that the records prepared during the Second Period weren’t ready for the very first customer alone, also noticed that the initial customer’s name didn’t appear on some of those records, nor was there any charge of charges from the first customer. Instead, IOOF claimed the documents were created for potential customers, rather than to the dominant purpose of providing legal information to the very first customer. Further, IOOF asserted there wasn’t any real possibility of litigation at the time that the records were created and consequently there wasn’t any”anticipated proceedings” as required under part 119 of this Act.