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Attorney Client Privilege in India

Privileged communications between lawyers and clients are protected under the Evidence Act, and are intended to ensure that the profession of law is responsibly and freely carried out. This article contains an in-depth analysis of this privilege.


I. Introduction


Attorney-Client privilege (‘the privilege’), or in other words the privilege or protection given to any communication between a client and his advocate, aims to ensure that any such communication remains uncovered, protected, and unobtainable for anyone. The privilege is a rule of evidence that extends to any documents or communication disclosed to a legal professional in his professional capacity. This rule of privilege all legal advice and assistance, and all things reasonably necessary in the shape of communication to the legal advisers are protected from production or discovery in order that that legal advice may be obtained safely and sufficiently [Phipson on Evidence, 15th Edition, 2000, paragraphs 20-05, 20-06]. The rule is based on the concept that it would otherwise be impossible to effectively conduct the legal profession because it requires full and unreserved intercourse between the legal adviser and the client [Jones v Great Central Ry (1910) AC 4, 5].


II. Relevant statutory provisions


Privileged communication has been protected under sections 126 to 129 of the Indian Evidence Act, 1872 (‘the Act’), as well as under the Advocates Act, 1961 (‘Advocates Act’) and the Bar Council of India Rules (‘BCI Rules’).


Section 126 of the Act states that 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. A communication by a client to his lawyer is required to be kept confidential [Memon Hajee Haroon Mohamed v. Abdul Karim [1878] 3 Bom. 91]. The privilege under section 126 is qualified and not an absolute privilege. This is evident from the illustration to section 126 itself, which demonstrate that the privilege is not available in certain cases. (Also refer to Deepchand v. Sampathraj, AIR 1970 Mys 34 for the proposition). It will also include a communication from a third party meant to be transmitted to the client through the lawyer (West Bengal v. S. Bhowmick AIR 1981 SC 917 and Balabel v Air India AIR 1993 SC 1246).


The section further adds that if any communication has been made in the furtherance of any unlawful act and anything observed by a lawyer during the course of his employment that reveals a crime or fraud has been committed since the beginning of his or her employment, then the privilege under section 126 won’t be applicable.


Section 127 extends the applicability of section 126 to the interpreters, clerks, and servants of the lawful counsel. Thus, communication contained in a letter (or, email) not addressed to the advocate but to his clerk, would be protected under the privilege.


Section 128 further clarifies that the client can disclose such communication and can even ask any such barrister, pleader, attorney, or vakil as a witness to disclose the communication. The client here will be deemed to have consented to such disclosure however; such disclosure will be allowed only to the extent of the client asking questions to legal counsel.


Section 129 sets out that nobody will be constrained to uncover to the court any private conversation which has occurred between him and his lawful expert consultant, except if he offers himself as a witness. Thus, while sections 126, 127 and 128 provide protection to the lawyer and his servants, clerks etc., section 129 provides protection to the client (or any witness) regarding disclosure of confidential information.


Furthermore, the BCI Rules (Part VI, Chapter II, Section II, Rule 7) stipulate that an advocate shall not breach its obligations imposed under section 126 of the Act. Further, Rule 15 states that an advocate should not take any unfair advantage of his client’s confidence imposed on him.


III. Scope of the privilege


(a) What is protected?


The privilege protects all communications i.e., oral as well as documentary communications that take place between the lawyer and the client during the engagement of the lawyer (Larsen & Toubro Limited v Prime Displays Pvt. Ltd. 2002 SCC OnLine Bom 267).


(b) Period of protection


No protection is given to the communication between a lawyer and client before the creation of the professional relationship (the attorney-client relationship) [Deepchand v. Sampathraj, AIR 1970 Mys 34]. Thus, the creation of a professional relationship is necessary between the lawyer and the client, and that marks the commencement of the protection and the privilege.


Once a communication is covered by the privilege, the protection continues even after employment ceases and the lawyer-client relationship comes to an end (Kalikumar Pal v Rajkumar Pal 1931 (58) Cal 1379).


(c) Waiver of the privilege


Furthermore, the privilege can be waived only after the express consent for the same to be given by the client as it is not enough that the client fails to assert or claim that the communication is privileged (Mandesan v State of Kerala, 1995 Cri LJ 61 (Ker)).


Moreover, though the court under section 91 of the Code of Criminal Procedure, 1973 (‘CrPC’) can ask for any documents to be presented including those covered under the privilege, however, it has favored a harmonious interpretation of both the provisions in light of section 162 of the Act under which the Court can decide whether particular documents presented before the Court are to be admissible as evidence or not. Therefore, even when disclosure of a document is made pursuant to section 91 of the Code, the document can be ruled inadmissible thus protecting the intent of section 126 in part (refer Ganga Ram v. Habib Ullah, 37 Cri L.J. 113 and Public Prosecutor Madras v. Menoki, AIR 1939 Mad 914).


(d) Who is an advocate, communication with whom is privileged?


Regarding communication involving a litigation or count-pending case, it is relevant to refer to Satish Kumar Sharma v Bar Council of Himachal Pradesh (2001) 2 SCC 365, wherein the Apex Court ruled that the real test to decide about the advocate is to see whether that person is engaged to act or plead on the client’s behalf in a court of law.


Regarding advisory communication, in Larsen & Toubro Ltd v Prime Displays (P) Ltd 2002 SCC OnLine Bom 267 it was held that for getting the protection of privilege, the advice must be given by a person who is qualified, to give legal advice.


It is notable that both, representation in the court (i.e., pleading, arguing, filing etc.) as well as advising the client (e.g., legal opinions, memorandums, or general advisory) constitute practicing law in India. Section 29 of the Advocates Act provides that only advocates are entitled to practice the profession of law in India. That means only advocates can represent a client in the court as well as advise a client regarding any legal issue. Section 2(a) of the Advocates Act defines an advocate as someone who is enrolled in any Bar Council under the provisions of such Act.


For the sake of completeness, it is notable that in the UK, the above two facets of legal practice i.e., litigation and legal advice, are separately identified and two different privileges viz. (i) litigation privilege, and (ii) legal advice privilege, protect these facets differently. The key difference between the two is that communications with third parties are not protected in the latter, while communications with third parties are fully protected if they’re made in connection with litigation. In India, however, this distinction does not exist and sections 126 to 129 of the Act equally apply to any kind of legal practice or communication with the client, contemplated either for litigation or legal advice.


(e) Privilege with respect to salaried, in-house counsels


The Supreme Court in Satish Kumar Sharma vs. Bar Council of Himachal Pradesh (2001) 2 SCC 365 held that an advocate cannot be a full-time salaried employee. Thus, in-house counsels are not covered under sections 126-129 of the Act. However, if the salaried employees give legal advice to their employers, their advice and communication giving such advice would get the same protection as advocates under the Act (Municipal Corporation of Greater Bombay v Vijay Metal Works, AIR 1982 Bom 6).


(f) The “without prejudice” privilege


It is pertinent to mention yet another privilege, which is loosely referred to as the "without prejudice privilege" and arises from section 23 of the Act. The section states that in civil cases, an admission is not relevant if it is made (i) either upon an express condition that evidence of the same is not to be given, or (ii) under circumstances from which the court can infer that the parties agreed together that evidence of the same should not be given. Thus, this privilege is a rule of admissibility (rather than as a matter of right enshrined in sections 126 to 129 of the Act).


IV. The privilege and chartered accountants


A very relevant issues in present times is relating to communications with chartered accountants, who may be acting in the capacity of an auditor, an accounting expert, or a consultant generally. Clearly, the privilege under the Act which covers only lawyers does not extend to chartered accountants.


(i) No privilege independently for a CA


Chartered accountants do have a duty under Clause I, Part I, Second Schedule of the Chartered Accountants Act, 1949, to not disclose any information acquired in the course of their professional engagement to any person other than their client, without the consent of the client or as otherwise required by law for the time being in force. However, this duty has a clear exception – that if as per law it is required that the chartered accountant disclose some information, he ought to be complying with such requirement. For instance, in an income-tax investigation or assessment proceeding, a chartered accountant may be called in as a witness and required to produce his audit file with all the notes and communications. The chartered accountant shall have to comply with such direction.


(ii) Privilege exists when the CA has been engaged by the lawyer


It is a settled principle regarding privileged communication that the scope of such privilege extends even to communications with third parties, in contemplation of the legal advice or litigation (refer Crompton (Alfred) Amusement Machines Ltd v Customs and Excise Commissioners (1973) 2 All ER 1169 (HL)).


Often lawyers engage chartered accountants for an accounting opinion or an expert opinion on some other subject matter related to accountancy or audit or finance. Such opinion or document would be protected by privilege if the sole or predominant purpose of its preparation was that it is to be used by lawyers. In Vishnu Yeshawani v New Life Insurance Co (1905) 7 Bom LR 709, the Bombay High Court held that ‘although a document may not be such as passed directly between the legal adviser and the client, yet, if it is of such a nature as to make it quite clear that it was obtained confidentially for the purpose of being used in litigation and with a view to being submitted to legal advisers, then, the court will not compel the production of such a document’.


V. Search proceedings on lawyer’s premises


The set of exceptions and qualifications to the privilege is the chink in the armor for lawyers. Not so frequently, when there is an apprehension of any wrongdoing by the lawyer himself, he may have to face a search or investigation proceeding which may be intrusive, exposing the lawyer’s office to the peril of parting with confidential and privileged information.


The Act or other laws do not contain comprehensive statutory provisions covering this situation, and recently the Delhi High Court rejected a PIL filed for seeking guidelines to be issued regarding search & seizure operations on advocates' premises by the investigative agencies. The court cited that the issue involved complexities and policy decisions, and requested the petitioner that representations be filed with the central government in this regard. The court ultimately dismissed the PIL citing that there are already adequate safeguards under the CrPC which provide remedies against such search and seizure, till the time there is statutory intervention on the issue.


Needless to say, it was a missed opportunity by the court as such guidelines are indeed the need of time, particularly at a time when countries like the USA and the UK have already recognized this. (USA: refer to Antitrust Division Manual, available at https://www.justice.gov/atr/file/761166/download; https://www.justice.gov/jm/jm-9-13000-obtaining-evidence#9-13.420) (UK: refer to AM & S Europe Limited v. Commission of the European Communities Case 155/79; Akcros Chemicals v. Commission Case C-550/07 P).


In a case last year, the lower court gave an interesting direction protecting a lawyer from breach of his privilege. An advocate, whose premises were being searched by the police, filed an application against such search on the ground that the documents concerning his other clients may be disclosed in the process. The court in the interim stayed the operation of the search warrant, and subsequently appointed a counsel as the local commissioner under whose supervision the process of seizing and sealing was to be done. While this was an appreciable step, the court made it clear that the genesis of such an innovative step didn’t lie in the attorney-client privilege. The court observed that:


“A reliance on sec. 126 of the Indian Evidence Act and Bar Council Conduct Rules was misplaced as the same envisages voluntary sharing of data /communication by the Advocate or deposing against the client while here the situation is different in this matter as the data is to be collected by the police on account of investigation in a criminal case. The plea for non-sharing of data of other clients of the applicant is beyond the scope of sec. 126 of Indian Evidence Act."


Statutory provisions need to be augmented to cover the fact scenario where a search is conducted on a lawyer’s premises. This is even more required lately with the frequency of searches and investigations getting increased by the day. In order to give comprehensive meaning to the privilege, and to ensure that lawyers are able to fulfil their professional expectations and responsibilities completely without fear, statutory protection also needs to be made comprehensive.


VI. Conclusion


The proposition of the law of legal privilege is still not well developed in India and requires to be made more comprehensive. New-age laws, for instance, the competition law or even the income-tax law as amended from time to time, do not adopt the Evidence Act for the conduct of proceedings. Since the source of the attorney-client privilege in India is the Evidence Act, what would be the fate of the privilege in case of laws to which the Evidence Act is not applicable, is a question still not clearly answered or even understood. An appropriate method for bolstering the privilege would be to make suitable amendments to the Advocates Act and to attach the privilege to the institution or personality of a lawyer rather than to admissibility of evidence. Only then would the privilege be completely protecting all communications with lawyers, meeting the end objective of freedom of professional conduct.


Authored by the Editorial Team, Metalegal Advocates. The views expressed are personal and do not constitute legal opinion.

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