By Neha Choudhary
Introduction
In the midst of any legal confrontation or business, it is essential to know whether the shared information will remain safe, or confidentiality would be maintained of the material facts. An individual must understand that the information they share is in safe hands and they can trust the person they shared their crucial information with.
The privilege to expect confidentiality is not limited to any business but also within the Attorney-Client relationship. This advantage belongs to the Client and only they can release the Attorney or allow the Attorney to share the information between them.
In a corporation, the Attorney-Client relation applies to all the employees and not just the head of the corporation.
This article deals with the meaning of Attorney-Client Privilege in India along with its comparison with other countries.
What is meant by Attorney-Client Privilege?
The Attorney-Client relationship is considered as a sacred legal professional relationship where information shared under the umbrella of the Attorney-Client privilege needs to be protected under all circumstances whatsoever.
Attorney-Client privilege is a rule to protect the communication which is meant to remain confidential between the lawyer and his client.
It is the ‘privileged professional communication’ between the Attorney and his Client which is to be protected by the Attorney until the Client gives consent to reveal the information. It prevents the disclosure of any information whether it is oral or written including mails.
According to this rule, the Attorney cannot divulge the client’s information and act as a waiver even if they are forced by others.[1]
It is also important that the information shared should be confidential to claim the benefit and no claim will be provided in case such conversation was made before the Attorney-Client relationship started. This was given in the case of Memon Hajee Haroon Mohomed Vs. Abdul Karim.[2]
In the case of R. Vs. McClure[3] it was stated that:
“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 that provides legal advice to clients within this complex system.”
Attorney-Client Privilege in USA
The critical tool of Attorney-Client privilege is used for open and truthful communication between the Client and his lawyer to ensure that the legal advice provided is best in the client’s interest. The main aim of the privilege is to provide a better understanding of the material facts of the case and high-quality representation.
In the United States, the Attorney-Client privilege is administered by rules refined by the common law over time and thus has been codified in statute in some states whereas most of the rules regarding the privilege are interpreted in the case laws.
In the case of Upjohn Co. Vs. The United States[4], it was stated that:
“The Attorney-Client privilege is the oldest of the privileges for confidential communications known to the common law.”
In arbitration or any organization, maintaining the privilege is a complex process as the Attorney-Client privilege as in the United States is based on the rules promoted by the organization that hosts the adjudication.
For example, the International Centre has certain rules for Dispute Resolution, the international dispute division of the American Arbitration Association which directs the tribunal for the issues regarding privilege.
In the US like any other country, the Attorney-Client privilege protects the communication and the Attorney is ethically bound to keep the shared information confidential. Herein, the Attorney-Client privilege is between In-house or external counsel whereas, countries like India and Russia recognize the privilege but is not extended to the In-house counsel.
The information cannot be shared with any other person as long as the Client intends to keep the material information to be confidential. However, a third party can be involved who is reasonably necessary and is the best to the lawyer’s ability for the legal advice in a particular matter[5].
Moreover, both the Client and the Attorney must be aware that communication shall not be shared with the non-essential third party as it would waive the privilege.[6]
According to the law provided, the Attorney-Client privilege can be claimed by:
“The client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the Attorney or the Attorney’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client”.[7]
Under US laws, the Attorney-Client privilege would protect the communications regarding legal advice only, and other topics like business advice are not benefitted under this privilege.
In-house counsel who at times are both legal advisers, as well as business advisers, must be aware of the fact that only the communication which has the primary objective to get legal advice and the non-legal information conveyed is an essential part of the communication are bound to get the privilege as communication regarding the business and any legal advice which is incidental would not be protected under Attorney-Client privilege.[8]
Moreover, information provided by emails or communication through any other electronic source about business and not legal would not be protected under the umbrella of Attorney-Client privilege.
In the situation where the confidential information has been leaked, the courts can impose sanctions for not adhering to the Court orders. The Attorneys are bound by their moral and ethical duty to keep the information shared confidential and thus would violate the principle in case of intentional disclosure and not otherwise.
However, an Attorney is morally obliged to maintain confidentiality in normal circumstances and not in the cases where the Client is seeking advice for a future crime or a mishappening.
Attorney-Client Privilege in the UK
In England and wales, the principle of legal professional privilege is almost the same as in the other countries provides protection for the disclosure of the information and evidence and can only be waived by the client.
It is well weighed as a fundamental human right as a part of the right to privacy guaranteed under Article 8 of the Convention under English Common Law, and by the European Court of Human Rights. The privilege is subject to the rules set out by the Civil Procedure Code 1988 Rule 31.6.
The scope of the privilege is extended to the legal professional privilege between the lawyer and the Client for attaining legal advice in the matter of a particular case and litigation privilege.
The legal advice privilege ensures that the communication between the lawyer and his client remains confidential in any matter whatsoever and thus cannot be waived except in certain cases and on the other hand litigation privilege ensures the protection of confidential facts of the facts within the parties concerned for the litigation.
According to the Proceeds of Crime Act, 2002, the privilege can be waived at times when the Client is suspected of a criminal act like money laundering and an Attorney is required to give the information about such an act to the authorities.[9]
The privilege provides the maintenance of confidentiality and thus it is the right of the Client only to waive the privilege[10] and the lawyer is conscientiously bound for non-disclosure of the information. Referring to the information provided by the Client during the trial would not amount to the exposure of the information and does not waive the privilege.[11]
However, reading the entire document by counsel at trial without the client’s consent, amounts to a waiver of the privilege.[12]
The privilege is the fundamental principle of justice and thereby the inspection of the martial facts is refused to keep the information confidential not only in litigation but generally as well. The Client must be confident that the concerned lawyer would never reveal the information without his consent and maintain the principle of confidentiality.
Thus, the privilege is different than an ordinary rule of evidence in the matter of a particular case.
Why is the privilege Important in India?
This privilege must exist to ensure that the information which was crucial for the case remains with the Attorney only, as without this benefit a man would not trust to consult any skilled person or would only dare to tell his counsel the half-truth.
This principle promotes truthful communications between Attorney and their clients by removing concerns of any disclosure of the information to either opposite party, court, or the public in general.
The confidential professional information between the legal advisor and his client has been given a legal protection in India under the Indian Evidence Act, 1872.
Secrecy has been an integral part of every business and the Attorney-Client relationship to protect it from the disclosure of any crucial information under all circumstances. This privilege applies when a client shares his details with his lawyer for legal advice under his professional capacity rather than being a friend or under those situations where the Client himself intends his communication to remain confidential within them and didn’t consent for the disclosure of those personal facts.
There is no specified definition for privileged communication but Section 126 and 129 of the Indian Evidence Act, 1872 specify the benefits enclosed by the Client to protect confidential information. Section 129 prohibits the Client from disclosing the information whereas Section 126 prohibits the lawyer.
It is a rule of evidence to prevent lawyers from unveiling the client’s information formally or informally, even when the Client died or the concerned case gets over. One cannot even ask the Attorney to disclose confidential information under the right to information.[13]
In the case of P R Ramakrishnan Vs. Subbaramma Sastrigal[14] it was held that Section 129 of the Evidence Act, 1872 applies to both the Client as well as the Attorney and aren’t under any obligation to disclose the privileged communication to the third person.
What is the scope of Privileged Communication under Section 126 of Indian Evidence Act, 1872?
Section 126 of the Indian Evidence Act, 1872 provides the scope of the privileged communication and prevents any Attorney, barrister, or lawyer to disclose confidential information of their Client shared in the course of the employment to anyone except under certain situations (exceptions).
The Bar Council of India provides certain code of conduct written under Part VI, Chapter II, Section II, Rule 7 that specifies the violation of these rules if an advocate reveals the information and commits a breach of obligation.
Section 126 plays a major role in various criminal cases such as rape, murder, a crime under POCSO Act, etc. It is the client’s responsibility to provide all the necessary information or documents to his advocate or Attorney regarding such crime.
For example rape, in these circumstances his Advocate shall not uncover his entire secret or personal information to anyone or the Court. However, the rule creates a loophole by protecting the information of a criminal while at the same time protecting the criminal.
The scope of this section extends to all the employees of a law firm who even include accountants and other such employees. The interpreters and agents engaged with the Attorney are also bound by the rules but these privileges do not stand for the In-House lawyers.
In-house lawyers fall outside the ambit of Section 126 of the Act and cannot practice as advocates or Attorneys during the period of their employment.
The Supreme Court in the case of Satish Kumar Sharma Vs. Bar Council of Himachal[15] stated under Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules that an advocate cannot be a full-time salaried employee of any person, government, firm or corporate body and practice at the same time duration.
On the other hand, the salaried employees who legally advise their employers would get the same protection as the lawyers or advocates under Section 126 and Section 129 of the Indian Evidence Act.[16]
What are the Exceptions to this rule? What all matters that are not protected by this Privilege?
Under normal circumstances, it is the duty of the lawyer, not to disclose any information relevant for their Client to the third party but there are certainly exceptional cases where the Attorney can disclose the facts where mandated. These can be:
- Section 126 of the Indian Evidence Act, 1872 has been designated as a privilege for the protection of the client’s information but it would not be considered as a privilege when the Client has himself consented to disclose the confidential information.
- Secrecy in certain situations cannot be curtailed when the Client and his lawyer are having the conversation in public and the lawyer could not prevent anyone who overheard them from testifying it.
- There are chances where the Attorney-Client relationship can be forfeited by the Client himself by repeating the information to some other person or discussing it with the Attorney when the third party was already there. However, the Attorney under moral and legal obligation cannot repeat the communication no matter who overheard it or learned about the same.
- If a client shares about his previous acts with his Attorney, for example, robbed a bank or lied about assets during a divorce or secretive information about having an extra account in the bank, etc., the lawyer cannot disclose the information to anyone. However, under certain circumstances, if a client tells the Attorney during a conversation that he is going to commit a crime or a fraud in the future, the Attorney-Client privilege typically doesn’t apply here and the Attorney is ought to reveal information that can prevent injury or death.
In the case of Shorter Vs. State,[17] the lawyer called the police and reports the client’s statement about killing his wife’s boyfriend. But the Client killed the person before he could be found.
It was observed by the Court that the Attorney and Client relationship does not apply here as it was important to prevent the aforesaid crime and the lawyer’s report of the statements is admissible at the defendant’s trial.
What are the duties of the Advocate towards the Client?
The relationship between the Client and the Attorney is very fiduciary. The Client shares all the relevant and confidential information with his lawyer or Attorney believing that it will not be shared with the third party. The information shared needs to be protected by the Attorney as he is bound by the moral obligation and professional ethics.
This is basic for any professional to stick to its ethics and code of conduct and be loyal to his clients.
The lawyer along being loyal for their client thus has certain duties towards their clients for a truthful revelation of all the confidential facts.
Mandatory Duties of an Advocate towards his Client
Certain duties are mandated under the Advocates Act, 1961 under Section 49(1)(c) and maintained according to the rules of the Bar Council of India. The duties of a lawyer towards their client may include:[18]
- An Advocate must advise his client to the best of his knowledge and interest. He must provide his client with the information and best advice in the concerned case.
- It is the duty of the Advocate and the agents involved with him to maintain the clause of confidentiality and not to disclose the client’s confidential information with anyone whether formally or informally.
- The Advocate has a duty to keep his client informed and updated about the information and the new changes that could be important for their case.
- It is the moral duty of an advocate not to take the opponent’s case after withdrawing the client’s case.
- An Advocate is bound to accept briefs from a client and in the case of rejecting, justify the reason for refusal of the particular brief.
- It is the duty of an Advocate to demand fees at par as compared to other advocates practicing at the same bar. He should ask for a reasonable amount only.
- The most essential and ethical duty of an Advocate is to give money to the Client and not to keep it for his profit in the case where the court has given a certain amount to the client.[19]
- It is the Advocate’s duty to serve the case he has agreed for and shall provide the Client with the notice in case he is withdrawing from his case and must refund the amount he had not worked for.
- The Advocate has the duty not to serve the case where he is going to appear as a witness.
- It is the duty of the Advocate to be polite and kind towards his client. His behavior towards the Client should be nice and should never influence or manipulate the Client by undue influence or any other way. He should never present forged or fraudulent documents to the client.[20]
Remedies if mandatory duties not fulfilled by the Advocate
However, certain remedies are also provided for breach of rules on Advocate’s duties provided under the Advocates Act, 1961.
If there is a breach in the duties performed by the Advocate, the State Bar Council and its Disciplinary Committee are empowered to punish the professionals.
- Under Section 35 of the Advocates Act, 1961, punishment is provided for the Advocates for their misconduct. It provides the State Bar Council to refer the case to the disciplinary committee for inquiry about the complaint registered and issue notice to the Advocate concerned. The State Bar Council after hearing both sides can either dismiss the complaint, reprimand or suspend the Advocate, remove the Advocate’s name from the Bar list or debar him from practicing anywhere in India at the time of the suspension.
- Any person aggrieved by an order under Section 35 may appeal to the bar council of India within 60 days of the date of the communication of the order to him.[21]
- Any person aggrieved by an order under Section 36 or 37 may appeal to the supreme court within 60 days of the date of the communication of the order to him.[22]
Conclusion
It is important to understand that the information that is being shared within the trustful relationship remains confidential in any manner. The privilege provided by law is necessary to ensure that all the crucial information is safe and will remain within the Client and Attorney and will not be shared with the third party.
If the Advocate fails to protect the information, it would be against his moral ethics.
The Attorney is bound by certain duties which are to be performed by him in every situation; however, the Attorney can fail to perform his duty to keep the client’s information confidential under exceptional cases.
Moreover, if an advocate fails to perform his duties the complaint can be filed for the breach of his duties and the State Bar Council and its Disciplinary Committee can punish the professionals for their professional misconduct.
References
- The United States Vs. White, 970 F.2d 328 ↑
- Memon Hajee Haroon Mohomed Vs. Abdul Karim, [1878] 3 Bom. 91 ↑
- R. Vs. McClure, [2001] 1 SCR 445 ↑
- Upjohn Co. Vs. The United States, 449 U.S. 383, 389 (1981) ↑
- The United States Vs. Kovel, 296 F.2d 918, 922 (2d Cir. 196) ↑
- United States Vs. Evans, 113 F.3d 1457, 1462 (7th Cir. 1997) ↑
- 12 OK Stat § 12-2502 (2019) ↑
- Neuder Vs. Battelle Pac. Nw. Nat’l Lab, 194 F.R.D. 289, 293 (D.D.C. 2000) ↑
- Bowman Vs. Fels, [2005] 1 WLR 3083 ↑
- Anderson Vs. Bank of British Columbia, [1876] 2 Ch. D 644 ↑
- Tate and Lyle International Ltd Vs. Government Trading Corporation, [1984] LS Gaz R 3341, CA ↑
- Great Atlantic Insurance Co Vs. Home Insurance Co, [1981] 2 All ER 485. ↑
- Karamjit Singh Vs. State, AIR 2010 (NOC) 699 (P&H) ↑
- P R Ramakrishnan Vs. Subbaramma Sastrigal, AIR 1988 Ker 18 ↑
- Satish Kumar Sharma Vs. Bar Council of Himachal Pradesh, AIR 2001 SC 509 ↑
- Municipal Corporation of Greater Bombay Vs. Vijay Metal Works, AIR 1982 Bom 6 ↑
- Shorter Vs. State, 33 So. 3d 512 ↑
- Law farm Team, “Duties of Advocates ( Bar Council Rules)”, available at: .lawfarm.in ( last visited on September 07, 2016) ↑
- P.D. Gupta Vs. Ram Murti, AIR 1998 S.C 283 ↑
- Harish Chandra Tiwari Vs. Baiju AIR 2002 S.C 548 ↑
- The Indian Evidence Act, 1872 (Act 1 of 1872), Section 37 ↑
- The Indian Evidence Act, 1872 (Act 1 of 1872), Section 39 ↑