In this article, Sahali Manna from KIIT law school discusses in detail the Attorney-client privileges.

ATTORNEY-CLIENT PRIVILEGES IN INDIA

“The practice of law is not a business open to all who wish to engage in it; it is a personal right or privilege….. it is in the nature of a franchise from the state…..” Mookherjee J

Introduction

• Secrecy and non-disclosure are an integral part of any commercial relationship. The attorney-client relationship mandates the lawyer under a moral obligation to maintain his client’s confidentiality.
• Without a client’s expressed consent no barrister, attorney, pleader or lawyer is permitted to disclose any communication made to him in the course of employment as the communication which is made between a lawyer and client is a privileged one.
• A privilege communication solely protects the client’s interest and ensures open and truthful communication between lawyer and client without any fear of disclosure.
• There is no statutory definition of privileged conversation in Indian law but  Sec 126 and Sec 129 of the Indian Evidence Act of 1872 lays down the benefit of the privileged communication.

Why is legal privilege so important

A person seeks for legal help when he is in deep legal trouble, and expects whatever he will discuss with his lawyer will remain confidential as he discloses all his secrets relating to the case with his lawyer. So, a legal privilege is essentially a right that exists for the sole benefit of the client and ensures full and frank communication between clients and lawyers without any fear of disclosure or incrimination.

The importance of this rule was eloquently explained by the Canadian Supreme Court in a 2001 case (McClure),

“This privilege is fundamental to the justice system. The law is a complex web of interests, relationships, and rules. The integrity of the administration of justice depends upon the solicitor’s unique role who provides legal advice to clients within this complex system.”[1]

The essence of this privilege lies in the fact that trust between both the parties is utmost essential so that the client who seeks representation for his problem lays bare all the essential knowledge without apprehension. Therein, the lawyer can only then fully represent their client’s interest.

Characteristic of legal privilege

Attorney-client privilege is one of the oldest privilege available in the common law system. It can be traced back to the time of Queen Elizabeth. This privilege contains certain characteristic to ensure secrecy and reliability to the client. These are as follows:

• Gives the client the assurance of confidentiality in case of obtaining legal advice.
• Encourages full and frank communication between attorney and his client.
• The duty applies even when the client does not retain the lawyer’s service but has consulted him.
• The duty continues even after the end of an attorney-client relationship.

What not to disclose under attorney-client privilege

As privileged communication ensures truthful and frank conversation to the clients with their lawyer there are certain matters which must be looked after by the lawyer to hold the faith and trust of his client. So it is basically a lawyer’s duty to keep the secrecy of the conversation with his client.

• A legal professional is forbidden from disclosing without his client’s consent any communication made to the lawyer in course of and for the purpose of employment.
• The contents of conditions of any document which came to his knowledge in the course of employment and for the purpose of employment.
• Any advice by the lawyer to his client in the course of and for the purpose of such an employment.[2]

Exception of the attorney-client privilege

In common law system the lawyer is required to respect his client’s confidentiality and he should not disclose any information to a third-party. But there are some exceptions available to the situation:

• Sec 126 of the Indian Evidence Act 1872 has been designed solely to protect the client’s interest, therefore it won’t be considered as a privilege if the client himself discloses any conversation between him and his lawyer,
• Or if the lawyer with his client’s express consent discloses such communication.
• The attorney must disclose information learned from his client that may prevent somebody’s death or serious injury.
• There will be no privilege attached to any communication between attorney and client against the person who holds joint interest with the client in the same subject matter.

Example: between shareholders of a company or between partners of a firm.

• If the client discloses something to his advocate and the advocate is called as a witness then under such circumstances the advocate can disclose such information.
• Unless the client offers himself as a witness, he can also not be compelled to disclose any confidential matter in the court.[3]

Matters that are not protected by the attorney-client privilege

The duty of confidentiality lies with the lawyer in order to protect his client’s interest but there are some matters which if gets protected can lead to some serious consequences. It can even be unjust on the part of the state.

Followings are some matters not protected by the attorney-client privilege.

• Like any communication made for an unlawful purpose with the intention of committing a crime.
• If it is observed by any lawyer that in course of his employment any type of crime and fraud has been committed by his client.[4]

In-house lawyers and the attorney-client relationship

• During the period of employment in-house lawyers cannot practice as advocates so, they stand outside the ambit of Sec.126 of the Indian Evidence Act. Therefore, any kind of professional communication between an in-house counsel and employees, directors of the company are not protected as a privileged communication.
• But the employment contract of an in-house counsel generally contains a confidentiality clause which protects the confidentiality of any information. But it should be kept in mind that this “confidentiality clause” and “privileged communication” are two different thing and subject to certain contractual exception, a client can claim damages from the in-house counsel in the case of a breach of a confidentiality clause. [5]

Drawbacks & weakness of attorney-client privileges under the Indian Legal System

One of the major drawbacks of attorney-client privilege is that it is entirely dependent on loyalty. Every coin has two sides. As loyalty can be denoted in a positive sense, it can also be misused. An attorney by showing loyalty to his client can be disloyal to the state which can lead to unfair trials and injustice, on the other hand, an attorney then being disloyal to his own client can cause loss of reputation of his client which may further lead to defamation. An attorney has a responsibility towards his client not to disclose any confidential fact related to the proceedings in any case.

As seen in the case of M. Yovas & others v. Immanuel Joseph & others[6] it was seen that the advocate of the opposite party was summoned to be the witness to testify whether one of the plaintiffs had sent a letter after the commencement of the proceedings between the same parties and secondly, whether the advocate has suggested to any compromise proposal to the plaintiff. In the present instance, the Kerala High Court held that it was proper to refuse to be the witness, in the court of law.[7]

Furthermore, Sec 126 restricts privilege to the client only. And the provision does not include patent agent while in Sec 129 the expression ‘the legal professional advisor’ may not include a patent agent.

Communication between lawyer and client is only privileged under Sec 126 of the evidence act but the communication made between the client and the third party or lawyer and third parties such as technical expert and witness are not privileged if the communication has been made to obtain advice from the lawyer.

Conclusion

The attorney-client relationship has preserved the confidentiality of communication between lawyers and the client since the days of Queen Elizabeth that encourages clients to be completely truthful with their lawyers. Such communications are said to be privileged but with the absence of protection for communication with the third parties, certain categories of intellectual property advisers, technical experts, in-house counsels the laws are not adequate to give protection to the modern attorney-client relationship. As the time is growing complexity in legal proceedings are also growing so certain wording in the provisions needs to be changed in order to bring the same under the ambit of attorney-client privilege.

BIBLIOGRAPHY

Articles referred: 1. In-house counsel and the attorney client privilege by Amarchand & Mangaldas & Suresh & Shroff & Co.

Book referred: The Law of Evidence by Batauk Lal

Website referred: www.nisithdesai.com

[1] [2001] 1 S.C.R. 445

[2] Batuklal, The Law of Evidence, nineteenth edition, Central Book Agency

[3] ibid

[4] ibid

[5] Amarchand & Mangaldas & Suresh & Shroff & co, Inhouse counsel & the attorney-client Privilege, Lex Mundi Publications, 2007

[6] AIR 1996 Ker.1.

[7] Supra 2