The role of lawyers in the context of ASIC's investigative and enforcement powers

Abstract

The role of lawyers in the context of ASIC's investigative and enforcement powers is significantly different from their role in a private litigation context. This article examines the lawyer's role in providing advice to clients who are the subjects of ASIC's investigations and proceedings. the lawyer may become the subject of ASIC's investigations as either a suspect or non-suspect. This article explores the potential civil liability of lawyers under the due care and diligence rule in s 180 of the Corporations Act 2001 (Cth), and their potential accessorial civil and criminal liability in relation to their clients' contraventions of the corporations legislation. Reforms are suggested in this article to clarify the lawyers' role in ASIC's investigations, particularly their role in ASIC's oral examinations. There is also a need to clarify the operation of legal professional privilege under the Australian Securities and Investments Commission Act 2001 (Cth). This article also suggests that there should be more effective laws to enable the victims of corporate collapses to recover their losses. The reforms suggested in this article would produce a more effective corporation regulatory regime.