Vaishnavi Nair & Vidhi Agarwal
‘Privileged professional interaction’ means the immunity given to the communication between the client and the legal advisor. Professional correspondence and confidential conversations with legal counsel have been given immunity under the 1872 Indian Evidence Act (“the Act”). If there were no rights at all, all would be thrown into their own legal resources. A man who is stripped of all legal assistance would not contact any competent person, or would only dare to tell his lawyer half of his case.
Attorney-client privilege applies to a legal privilege that works to keep a lawyer’s and his or her client’s private correspondence confidential. In the view of a legal requirement for the correspondence, such as a request for discovery or a request testified by the lawyer under oath, the right is claimed.
Who is a client?
The Court took a simplistic focus of who, as opposed to an employee of the firm, truly constitutes the client. Although the Court agreed that a company could operate only through its workers, it held that this was not sufficient in itself to shield the employee’s correspondence to the lawyer of the employer. The Court, however, gave no clarification as to when an employee might be considered a client and when it may not be.
What is legal advice?
This issue was left open, but the Court indicated that in the sense of an investigation, collecting information for employees and former employees could be for the dominant reason of allowing facts to be submitted to the investigation rather than obtaining legal advice, and therefore fall outside the privilege again. Therefore, legal advice had to be differentiated from other types of support a lawyer might offer.
What is the purpose of attorney-client privilege?
A client thinks his lawyer as a confidant, a person to whom he goes when he is at the deepest trouble and believes that whatever he will discuss with his lawyer will remain a secret while he will also find a solution through legal ways, so the merits of attorney-client privilege is to ensure that the clients say the truth while have a frank communication with his lawyers believing that the matter remain within both of them. While it’s the oldest privilege which can be drawn back to the times of Elizabeth, also the duty of being confidant doesn’t end with the case but remain after that also when he has just consulted him and not retained lawyer’s service.
What does the Indian Evidence Act state?
Sections 126 to 129 of the Indian Evidence Act, 1872 in India deal with rights connected with professional contact between a legal advisor and the client. Sections 126 and 128 mention the conditions in which proof of such professional contact can be given by the legal advisor. Section 127 stipulates that interpreters, clerks or servants of legal advisers are equally restrained. Section 129 states that when a legal adviser will be forced to reveal the confidential correspondence between him and his client that has taken place.
Section 126- Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to
- Disclose:
- any communication made to him by or
- on behalf of his client or any advice given by him to his client in the course and for the purpose of his employment;
- to state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment.
The scope of privilege attached to professional correspondence in an attorney-client atmosphere is provided by section 126 of the Act. It prohibits the disclosure of all correspondence exchanged with the client by lawyers and the disclosure of the contents or conditions of the documents in the possession of the legal advisor during and for the employment of the latter with the client. The elements required for defence to be granted are:
There should be:
- A client’s contact with his attorney;
- Documents shared between a client and a prosecutor, the substance and status of which the lawyer should be familiar with; or
- The attorney’s advice to the client.
- The information referred to above may have been given in the course of and for the purpose of professional interaction with or in preparation of litigation with the attorney, and may not be simply general information.
- The disclosure should not be for any criminal reason, or such details should not contribute to the commission of any fraud or crime following the beginning of engagement with the lawyer.
- Whether the attorney’s focus was expressly drawn to a particular fact by the client (or anyone on behalf of the client) is not important.
Section 127- States that “Section 126 to apply to interpreters etc”. The provision of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.
Section 128- Section 128 of Evidence Act States that “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 or matters which, but for such question, he would not be at liberty to disclose.
Section 128 fails to oblige the legal advisor to report all details protected by Section 126, unless the client calls and asks the legal adviser as a witness.
Section 129- States the 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.
Section 129 sets up that no one shall be required to reveal to the court any privileged contact which has taken place between him and his legal professional counsel, unless he presents himself as a witness.
Sections 126, 27 and 128 vary in their nature from that of Section 129. The former parts prohibit the disclosure of professional correspondence by a legal advisor. Section 129 occurs when a client, whether or not he is a party to a complaint, is interrogated. Section 129 states that no person shall be required, unless he offers himself as a witness, to reveal to the Court some correspondence between himself and his legal advisor. Section 129, therefore, renders an individual exempted from the mandatory process. This immunity can be extended to third parties, such as consultants who are employed to assist in the planning of proceedings. However, after the information has been released, due to its confidential existence, it can not be kept out of the Court any more than any other confidential matter. Also, if a party becomes a witness of its own accord, it shall, if the Court so demands, be forced to reveal anything relevant to the true understanding of its testimony.
In D. Veeraseharan v. State of Tamil Nadu, 1992 – An unsigned and unverified letter allegedly written by the lawyer-accused of staying absconding from his client-terrorist was held to be professional contact and not ‘abetment’ and therefore could not be used against the lawyer.
In another case, however, Gurunanak Provisions Stores v. Dalhonumal Savanmal AIR 1994, the Gujarat High Court observed that revealing was permitted where the client tried to obtain a money decree on the basis of a forged promissory note.
In Jones v. Great Central Railway 1910 AC 4, it was held that the rule is defined for the safety of the client, not the lawyer, and is based on the non-feasibility of conducting legal business without professional assistance and on the requirement of serving absolute and unreserved intercourse between the two for the purpose of making that assistance carried out.
Exception to attorney-client privilege
There are some exceptions which are available at certain situations:
- When the client himself discloses his case between him and his lawyers , it won’t be considered as a privilege while protection to clients interest has been provided under sec 126 under Indian evidence act 1872.
- When lawyer and his clients with their consent discloses any communication.
- The attorney in respect to prevent somebody’s death or injury discloses any information.
- There is no privilege attached to any communication between attorney and client and against the person who holds interest with the client in subject matter.
- When the client himself offer as a witness he is not obliged to disclose any private matter in the court.
- If the advocate under any circumstances is called in the court of law and he has to disclose any talk between the client and him.
What is the stand of Bar Council of India ?
The Bar Council of India, under section 4 of the Advocates Act 1961, regulates the legal practice and legal edition in India. The rule 7 and 15 of the Bar Council of India mentions the advocate duty toward the client. They are as follows:
Rule 7: An advocate should not directly or indirectly disclose any communication made by his client to him , while also not disclose any 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 squander or take advantage of the confidence lay down in him by his client while the privilege communication are not admissible in court of law as evidence.
Cases
In Satish Kumar Sharma v. Bar Council of Himachal Pradesh [AIR 2001 SC 509] the Supreme Court cited the part VI, chapter II, section VII, rule 49 of the Bar Council of India rule “an advocate can never be a full – time employer of any firm, corporation or organisation as long he continues to practice while take up such intimate cases the fact to which bar council of India roll on name appears shall ceased to practice as an advocate.” The only exception to this is the person is a law officer of the central government of a state or enrolled in the bar.
The court observed that ‘a salaried employee’ who advises his employer on all legal questions and also on legal matters would get the same protection as barrister, attorney or vakil under section 126 and 129 in case of municipal corporation of greater Bombay V.Vijay metal works [AIR 1982 BOMBAY].
In one of the cases, the court observed that an advice given by internal legal department of the applicant is entitled to protection under section 129, it should be given by a person qualified in legal matters.
In Mukesh Agrawal vs. Public Information officer, the Reserve Bank of India [2012] CIC 11210 when the client is a public body with public responsibility then Central Information Commission held that while there are many fiduciary relationship in respect of communication, there can be no fiduciary relationship with such clients.
While the same principle was observed and applied by CIC in 2015 in Alok Shrivastavav Cpio , English & foreign language university, the CIC cases show as that governmental entities does not come under traditional attorney-client privilege.
In Superintendent High Court v the Registrar Tamil Nadu Information Commission and m Sivaraj ,2010 [5] CTC238 here the public prosecutor bond by attorney-client privilege to not share any information provided it by state of Tamil Nadu, directed the citizen to approach state of Tamil Nadu board directly; the Madras High Court was also approached.
In Cecilia Fernandes v State represented by Director General of police goa and anr, criminal miscellaneous application no 9 of 2005, the court held that right to consult a legal practitioner can only be exercised in meaningfully in confidence.
Similarities between Attorney-Client Privilege and Confidentiality
Since attorney-client confidentiality and attorney-client privilege both have the overarching purpose of protecting the data of the customers, there are some similarities between the two about how and when information can be revealed. Generally speaking, all attorney-client confidentiality and privilege must be preserved before the client gives permission to reveal the details. Furthermore, when representation ends, the data will still remain private. In other terms, even though representation has ended, lawyers are still under the obligation to keep your personal details confidential.
Distinctions between Attorney-Client Privilege and Confidentiality
Although confidentiality of attorney-client and attorney client privilege both protect the details shared with your lawyer, they serve numerous purposes.
- Attorney-client privilege prohibits attorneys from being required to share the data with others. In other cases or investigations, law enforcement agents, insurance firms, or judges also try to ask lawyers for information that is revealed to benefit them. In these cases, the right covers the client and the counsel. It also prohibits any work-related details that an attorney produces in the process of litigation from being disclosed. Work-related material, often referred to as a work product, can include notes taken during meetings or mental observations or tactics recorded and intended to be used by lawyers at trial.
- Confidentiality of attorney and clients is a professional ethics regulation that regulates the ethical responsibilities of lawyers. Confidentiality laws specify that, for privacy purposes, lawyers are forbidden from revealing any information, unless it is commonly known to others. If details are known by a majority of people, under the law, it can lose confidentiality. However, in certain cases, as legally required, we are required to report such details.
Conclusion
Clients are given a degree of confidentiality for all correspondence and details the client receives in the process of representation while consulting with an attorney. It preserves your right to privacy by keeping your sensitive information private and ensuring that lawyers not only collect the most important data, but that all information is correct. Our lawyers are responsible for ensuring that all information collected through records or negotiations is secured to ensure the highest degree of compliance with our obligations.