Lawyer-Client Privilege Communication in India: A Critical Analysis

I. Introduction

A Lawyer client privilege generally means a communication just between the client and the attorney that is kept secretive and is private until and unless it is said to be exposed or used in the ‘Court of Law’ by the client. It is also a kind of protection provided to the client and his/her information’s are kept in confidentiality.

It is accorded protection under the Indian Evidence Act 1872, the Advocates Act,1961 and the Bar Council of India Rules.

II. Importance

1. The Lawyer client privilege defines confidentiality between a client and his/her lawyer, it is very important for a client to believe and reveal the consequential and crucial details of the case with whole truth.

2. The communication between both the lawyer and the client must be done with a sense of seeking justice and great sense of advice.

3. The information shared should be with confidence and that information is safeguarded with your lawyer and it cannot be disclosed without your prior permission.

The relationship between a lawyer and a client is also an integral part-

You just need to be open about every small detail as it could always come in use in the court room, you never know which little information can come to handful need. Thus, the only way a lawyer can provide you with his/her best interests and the quality service and win you a case.

III. Characteristics of a Privileged Communication:

1. It gives the client an assurance of confidentiality in obtaining legal advice.

2. The communication is encouraged to be frank between lawyer and the client.

3. The duty even applies when the client does not follow the advice of the lawyer.

IV. Rules of a Lawyer towards the client:

a) Bound to accept briefs: Lawyer is bound to accept briefs in the courts and tribunals wherever he/she practices, a lawyer should levy fees according to the gravity of the case.

b) Not withdraw from service: Once the case is taken by the lawyer and he/she decides to represent the client, they must not withdraw and let down the client until and unless there is some sufficient cause before him/her. Upon withdrawal the fees taken must be refunded to the client and the information that was with trust passed to the lawyer must not be disclosed.

c) Full and frank disclosure to the client: At the commencement of the privileged communication , thereof, make all fair, full and frank disclosure to the client relating to his/her connection with the parties and any interest that might affect the client.

d) Uphold interest of the client: It shall be the duty of the lawyer to uphold any interests of the client in any situation by all fair and reasonable means.

e) Not suppress material or evidence: In any case, the evidence should not be suppressed by which shall prove the innocence of the accused.

f) Not disclose any communication: By any means directly or indirectly disclose any such information that can cause the case to choke. If he/she discloses any information, it is liable under Section 126 of the Indian Evidence Act,1872.

g) Not charge depending on success of matters: A lawyer should not charge for his services on the basis of success of the proceedings.

h) Not adjust fees against personal liability: A lawyer should not adjust fees payable to him/her against their liability to the client.

i) Keep proper accounts: The aim is to maintain accounts of the money that the client has given to the lawyer and all the necessary particulars.

V. Privileged Communications

Indian Evidence Act, 1872

Section 126

It provides for the scope of privilege communications, it means when you are in a protected form of communication it exists to protect the disclosure of information during the subsistence of confidential or protected relationships. These communications are such that they may not be used as evidence in a court of law against the persons communicating due to the specific nature of their relationship until and unless the client wants to use the information to be used in the court of law. It restricts the lawyer to disclose any information to the outside world.

Section also provides for the exceptions on which such privilege shall be denied;

1. any communication made in furtherance of any illegal purpose;

2. any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement of employment.

1. S.T. Subramaniam V. the Secretary and ors.²

2. Gopi Lal and ors. V. Lakhpat Rai and ors.³

3. K.C. Sonrexa V. State of Uttar Pradesh and ors.⁴

Section 127

It extends the privilege and shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

1. Babu Kameshur Pershad and Another V. Sheik Amanutulla⁵

Section 128

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 agreed to thereby to such disclosure as mentioned in Section-126, and if any party to a proceeding calls any such barrister as a witness, he shall be deemed to have consented to such disclosure.

Section 129

Confidential communication with legal advisers; no one shall be compelled to disclose to court any confidential information that has been taken place between both the lawyer and the client, unless he offers himself as a witness in the Court of Law.

1. Municipal Corporation of Greater Bombay and Another V. Vijay Metal Works, Bombay⁶

Bar Council of India Rules

The BCI Rules stipulate certain standards of professional conduct for all lawyers. These provide “ An advocate shall not. Directly or indirectly, commit a breach of the obligations imposed by section 126 of the Indian Evidence Act,1872”.

Part VI, Chapter II, Section II, Rule 17 of BCIR stipulates the above mentioned lines.

1. Satish Kumar Sharma V. Bar Council of Himachal Pradesh⁷

The Judgement also quotes Rule 49 of BCI Rules; an advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice and shall, on taking up any such employment intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment. An advocate cannot be a full-time salaried employee. The only exception is if the person is a Law Officer of the Central Government of a State or of any public corporation entitled to be enrolled in the Bar.

Advocates Act, 1961

The rights are the legally enforceable and protected interests whereas privilege is an immunity which is conferred on a person or by a class of law.

1. He is exempted from arrest under civil process, while going or returning from the tribunal. It is mentioned under Section 135, Code of Civil Procedure, 1908.

2. No communication made between the advocate and client for professional employment is to be disclosed. This privilege is provided under Section 126 of the Indian Evidence Act, 1872.

Advocates Act, 1961; identifies only advocates as persons who are entitled to practice litigious and non-litigious matters, while there is no mention to in house-counsels. Law can only be practised by the advocates in India.

VI. Lawyer-Client Privilege- when does it get waived?

The privilege rights are granted to the clients and they hold the ultimate authority to waive it. When the client is a company or a corporation, it is looked upon in general in a meeting including all the members.

The issue of waiver mostly arises when a communication is witnessed by a third party or where the client does not intend the communication to be confidential.

Exceptions to lawyer-client privilege:

1. Death of a client: The privilege will be waived off upon the death of the client involved.

2. Crime or fraud: If a client asks for a advice from lawyer to initiate any crime or fraud, the communication held will not be privileged.

3. Common interest : If two parties are represented by the same attorney in a legal matter, the privileged communication cannot be held due to the same interest of both the clients.

VII. Lawyer Client Privilege in other Countries:

1. United Kingdom Law of Privilege:

Legal privilege in the United Kingdom is based on commonly two types:

a. Legal advice privilege: It attaches to communication done between lawyer and the client only.

b. Litigation Privilege: It can protect reports by third parties involved, prepared on the instructions given by the client for the purposes of litigation.

The protection granted is only if the content of the communication is strictly legal.

2. European Union Law:

The primary test involves checking the status of the lawyer making the communication. The privilege is to a limited extent conducted with independent lawyers.

1. AM&S Europe V. Commission of European Communities⁸

2. P Akzo Nobel Chemicals V. European Commission ⁹

3. Vietnamese Law of Privilege:

It does not distinguish between legal and non-legal communications, Vietnam’s Law on lawyers outlines this right of confidentiality between a lawyer and his/her client, and in general this privilege is weaker compared to other countries Privilege laws.

Article 25 of the Law on Lawyers impose obligation of confidentiality upon the lawyers and it fails to protect the confidentiality between a lawyer and a client.

VIII. Conclusion

The lawyer-client relationship has preserved the basic meaning of confidentiality of communication held or taken place between lawyers and client. Clients should be wholly truthful to their lawyers, such communications are said to be privileged but it should be protective elsewise with the absence of protection for communication with the third parties, such as in house counsels, intellectual property advisers are not given protection under the privileged communication.

Lawyer should not disclose any information of the client in any circumstances, they are under a moral obligation to respect the confidence, that is in the course of professional employment, by or on behalf oh his client, or to State the contents or conditions of documents, without consent of his client he cannot disclose any such information. If such communications wouldn’t have been protected no one could believe or rely on the lawyers for any case related issues.

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