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12 August 2008
The Evidence Act 2006, which came into force on August 1 2007, largely codified New Zealand’s common law evidence rules. However, as a result of some late changes, legal professional privilege did not attach to legal advice obtained from overseas practitioners (for further details please see "Evidence Act's Gap in Privilege Rules Spells Trouble for Overseas Practitioners").
The gap arose from certain statutory definitions. The act provides for privilege to attach to communications between persons and their legal advisers, but the definition of the term 'legal adviser' includes only lawyers (limited to practitioners with current New Zealand practising certificates), registered patent attorneys and overseas practitioners. An 'overseas practitioner' is defined to include Australian lawyers and patent attorneys, and legal advisers in other jurisdictions if their country is specified by an order in council. Until recently, no order in council had been made, despite pressure from the New Zealand Law Society. This left open the risk of advice provided by overseas practitioners being discoverable in New Zealand proceedings.
On August 7 2008 an order in council came into force which lists 87 civil and common law countries, including Canada, China, France, Germany, Japan, Russia, the United Kingdom and the United States. Communications with practitioners from the listed jurisdictions will now be protected by legal privilege in New Zealand, provided that the communications are intended to be confidential and are made in the course of (or for the dominant purpose of) obtaining legal services.
For further information on this topic please contact Allison Ferguson or Jeremy Browne at Wilson Harle by telephone (+64 9 915 5700) or by fax (+64 9 915 5701) or by email (firstname.lastname@example.org or email@example.com).
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