What Is Attorney-Client Privilege?

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,...

What Is Attorney-Client Privilege?

Afreen Alam & Hamza Lakdawala

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