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What Is Attorney-Client Privilege?

Afreen Alam & Hamza Lakdawala
26 Dec 2020 7:54 AM GMT
Attorney-Client Privilege
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There are very few elements of the law as holy and sacred as Attorney-client privilege. Attorney-client privilege or lawyer-client privilege is the common law concept that makes all communications between a lawyer and their client confidential, and such confidentiality is protected by law. "Privileged professional communication" is the immunity accorded to the communication between the legal advisor and the client. Attorney-client privilege is one of the oldest privileges for confidential communications. According to the Black's Law Dictionary, attorney-client privilege is "a client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."

In Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) the United States Supreme Court stated that by assuring confidentiality, the privilege encourages clients to make "full and frank" disclosures to their attorneys, who are then better able to provide candid advice and effective representation.

Background:

Attorney-client privilege can be traced back to 16th century Britain. Originally, the privilege seemed to be based upon the honor and integrity of the legal practitioner and belonged to him. This in turn meant that he could waive confidentiality, and the client would have no say in the same. Around the 18th century, the courts started developing jurisprudence to support the idea that privilege was the client's right, and the attorney alone could not waive it. By the middle of the 19th century, the law was clear - privilege belonged to the client.

When the British Empire took over the administration of India and imported their justice system into their new colony, Attorney-client privilege too made its way to the subcontinent, and soon became an essential element of the Indian legal system.

In Woolley v. North London Railway (1868-1869) LR 4 CP 602, the court held that information called for by the client and provided by an employee or a third-party agent, on the request of, and for the purpose of submission to, the attorney may also be protected.

Attorney-Client Privilege Under Indian Evidence Act, 1872:

The Indian Evidence Act, 1872 provides protection to professional communications and confidential communications with the legal advisors under Sections 126, 127, 128, and 129. The Evidence Act encompasses within its scope attorneys, barristers, pleaders or vakils and not in-house lawyers. The Advocates Act, 1961 defines an advocate to include only those lawyers who have enrolled with the specific State Bar Council.

Section 126 states, "No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure ––

(1) any such communication made in furtherance of any 2 [illegal] purpose,

(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment

It is immaterial whether the attention of such barrister, [pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client".

Section 126 of the Act defines the scope of privilege attached to professional communications in an attorney-client setting. Section 126 expressly prohibits legal representatives from disclosing any communications exchanged with the client. It also prohibits stating the contents or conditions of documents in possession of the legal representative during the course of the professional engagement.

Section 127 states, "Section 126 to apply to interpreters, etc. –– The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils". This ensures that the people working with or under the legal representative too are bound by law to maintain the same level of confidentiality as the legal representative.

Section 128 states, "Privilege not waived by volunteering evidence. –– If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and, if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose".

Section 128 binds the legal adviser from disclosing information covered under Section 126 unless the client calls the legal adviser as a witness & questions him/her on the same.

Section 129 states, "Confidential communications with legal advisers. –– No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others."

As per Section 129, no individual can be compelled to disclose to the court any privileged communication between him/her and his legal advisor unless he/she offers himself as a witness.

Therefore, any person who seeks the services of a legal practitioner who is registered under The Advocates Act, 1961, shall enjoy attorney-client privilege pursuant to the aforementioned sections of The Indian Evidence Act, 1872.

In Memon Hajee Haroon Mohomed v. Abdul Karim [1878] 3 Bom. 91, it was held that to claim the privilege under section 126 of the Evidence Act, communication by a party to his pleader must be of a confidential nature. In Kalikumar Pal v. Rajkumar Pal 1931 (58) Cal 1379, the court ruled that the communications between an attorney and client are privileged even if they contain information from third parties. Prohibition of disclosure also extends to any interpreters, clerks, or servants of the attorney. While the attorney-client privilege continues even after the employment has ceased, there is no privilege to communications made before the creation of an attorney-client relationship.

The Bar Council of India Rules

The Bar Council of India has framed the Bar Council of India Rules ("BCIR"), which stipulates certain standards of professional conduct and etiquette for all legal practitioners. Rules 7 and 15 of the BCI Rules state an advocate's duty towards the client:

Rule 7: Not disclose the communications between the client and himself: An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates section 126 of the Indian Evidence Act 1872.

Rule 15: An advocate should not misuse or take advantage of the confidence reposed in him by his client.

Infringement of the above-mentioned rules would subject an advocate to disciplinary proceedings. Hence, privileged communication between an attorney and a client are not admissible as evidence.

In the case of Satish Kumar Sharma v. Bar Council of Himachal Pradesh (AIR 2001 SC 509), the Supreme Court of India quoted the Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules, stating that 'an advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice and shall, on taking up any such employment intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment. An advocate cannot be a full-time salaried employee. The only exception is if the person is a Law Officer of the Central Government of a State or of any public corporation entitled to be enrolled in the Bar.'

Further, in the case of Municipal Corporation of Greater Bombay v. Vijay Metal Works (AIR 1982 Bom 6) the court held that "a salaried employee who advises his employer on all legal questions and also other legal matters would get the same protection as others, viz., barrister, attorney, pleader or vakil, under Section 126 and 129, and, therefore, any communication made in confidence to him by his employer seeking his legal advice or by him to his employer giving legal advice should get the protections of Ss.126 and 129."

In Larsen & Toubro Ltd v Prime Displays (P) Ltd [2003] 114 Comp Cas 141 (Bom), the Bombay High Court observed that: It is, thus, clear that, even according to the applicant, in order that an advice given by an internal legal department of the applicant becomes entitled to protection, under Section 129, that advice must be given by a person who is qualified, to give legal advice.

The Right to Information Act 2005 (the RTI Act) permits Indian citizens to access information held by public authorities. This has raised intriguing concerns about the attorney-client privilege as grounds for refusing to disclose professedly public information that is held by the public authorities.

Section 8(1)(e) in The Right To Information Act, 2005 states that; information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

In the case of Mukesh Agarwal v. Public Information Officer, the Reserve Bank of India [2012] CIC 11210, the Central Information Commission (CIC) held that while there may be a fiduciary relationship in respect of communication from the client to their attorney, there is no fiduciary relationship in respect of communication from the attorney to the client when the client is a public body with public responsibility under the RTI Act.

In the Superintendent, High Court v The Registrar, Tamil Nadu Information Commission and M Sivaraj, 2010 (5) CTC 238, The Madras High Court, held that: "Instead of asking the [Public Prosecutor], who holds such an information in the capacity of counsel, the petitioner is very well entitled to approach the client, ie, the State of Tamil Nadu directly for getting such information."

A concept that evolved in the 16th century, is now one of the most important aspects of our legal system. Without attorney-client privilege, no person would ever receive a proper defense or a fair trial. Attorney-client privilege allows a person to speak with his/her lawyer freely, without the fear of his/her lawyer turning on him. This in turn allows the lawyer to put up the best possible defense for his/her client. In a modern legal system, the attorney-client privilege is at the heart of justice, and without it, there would be no liberty.


[Hamza Lakdawala is an aspiring litigator, researcher, and writer from Mumbai. He studied Journalism at Mumbai University and is currently pursuing his LL.B. at Kishinchand Chellaram Law College, Mumbai. He tweets at @hamzamlakdawala]

[Afreen Alam is a law student, researcher, and writer from Delhi. She is currently pursuing her B.A. LL.B from Jamia Millia Islamia, Delhi. She tweets @Afreenalam_]



[i] "Attorney–client privilege", Black's Law Dictionary, p. 1391 col. 2 (Bryan A. Garner 10th ed. 2014).


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