An imperative element of the relationship between a client and an attorney is the fact that no information with regard to the representation made by a client shall not be revealed by an attorney unless there is an informed consent in that regard. This helps to develop a feeling of mutual trust which forms the centre of a successful client-attorney relationship. This enables the client to discuss, deliberate and convey everything to the attorney which in turn leads to better disposal of justice and enables the attorney to accordingly develop the case. The lawyer uses this information provided by the client to ensure effective and correct representation of the client in the appropriate legal forum.[1]
This article is an attempt by the authors to bring forth the existing stand of Indian legal system with regard to the client attorney privilege. The authors have tried to do the same by placing reliance on existing Indian statutes and by discussing the case laws with regard to the same.
Table of Contents
Privileged professional communication refers to the protection which exists between a client and a legal adviser. The importance of legal privilege is acknowledged worldwide by every legal system. The basic rationale behind privilege is that it not only enables a client to obtain legal advice and confidence but also encourages frank and complete communication between the client and the attorney. The privilege awarded to a professional communication is also in the interest of justice as justice cannot be delivered unless help is taken from men who are skilled in jurisprudence in the practice of Courts. If there would not have been any privilege or confidentiality then a man would have hesitated before contacting any professional or taking any professional assistance which would render him helpless and without any professional help. The condition would be so bad that half of the people won’t even think about telling half of their cases to their attorney because of the fear that whatever they say or tell can be used against them in the court of law. Therefore, the presence of confidentiality between a client and an attorney is vital for this profession in particular.
There is no specific legislation in India which deals with the confidentiality of data. The only sources of confidentiality or client attorney privilege are the Sections 126 and Section 129 of the Indian Evidence Act, 1872.
Section 126 of the Act, titled Professional communication, 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 as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure –
(1) Any such communication made in furtherance of any illegal purpose.
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation – The obligation stated in this section continues after the employment has ceased.”[2]
The Section 129 of the Act says that, “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 complete to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.”[3]
Now, as per section 126 of the Evidence Act, no barrister, attorney, pleader or vakil is permitted to disclose any of the communications between the client and him or the advice given by him to his client. The section does not prohibit disclosure of such information if in case the same has been provided in the furtherance of any purpose which is illegal as per the existing legal system.
Section 129 of the Act compliments Section 126 and provides that no one shall be compelled to disclose any confidential information between the legal professional adviser and the client. The same does not apply if in case the client himself offers to be a witness and the confidential communications are required to be disclosed for the explanation of the evidence given by him as the witness.
Apart from the Indian Evidence Act, the Bar Council of India Rules – Part VI – Rules Governing Advocacy – Chapter II – Standards of Professional Conduct and Etiquette – Section 2 – Subsection 24 states that, “an advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.” Also, Sub Section 19 of the aforementioned states that, “An advocate shall not act on the instructions of any person other than his client or his authorised agent.” When both the aforementioned provisions are read in conjunction then it is evident that the statutory requirement of lawyers in India is that they should abide by the confidentiality of their clients and are not supposed to do anything which might jeopardise the same. The relationship between lawyer and client is a fiduciary one.[4] The definition of fiduciary relationship in itself conveys the fact that a fiduciary relationship is based on confidentiality which is mutual in nature and includes the trust and confidence bestowed upon by the parties on each other.[5]
One of the main weaknesses of Indian law is that it has failed to adapt and evolve with the time. Even though the legislations like the Indian Evidence Act are one of the best legislations, still they fail to provide for and cover for the new areas coming up. Section 126 of the Evidence Act which has been discussed in detail already, does not talk about or provide for a patent agent. The field of IPR was introduced years after the legislation was enacted and still the same has not been updated in order to cope up with the upcoming developments. Section 129 of the Evidence Act talks specifically about the privilege given to a legal professional, the same does not include a patent agent and it also restricts the privilege by providing it to clients only. In the case of Wilden Pump Engineering Co. v. Fusfield[6]; it was held that a Patent agent cannot be regarded as a legal adviser or lawyer and thus was kept out of the purview of privilege in the common law legal system.
The same situation exists in case of Trademark agents also; the Indian Evidence Act fails to cover the communication between a client and a trademarks agent and thus is not privileged communication.
Apart from the new fields of law which had come up after the Evidence Act, the Act also fails to cover the communication between client-third parties and lawyer-third parties. The third parties here can be the technical experts, expert witnesses; the Act does not cover any communication which happens in this scenario thus rendering the clients and attorneys hesitant to approach an expert on an issue which might in turn hamper justice delivery.
Therefore, even though Indian law covers the client-attorney privilege, nonetheless it fails to cover for categories of Intellectual Property Advisers, the experts which play an important role in the proper delivery of justice. The Act also does not cover for foreign advisers and thus leave them unprotected. Finally, there is ambiguity with regard to the scope of clients in case of corporations. A body corporate is a separate legal entity with perpetual succession and what would be referred to as a client is not provided by the Act in case of these body corporates.
The earliest recorded case vis-a-vis the concept of attorney-client privilege can be found under the English Legal System.[7] The concept took the form of a protection against contempt sought by the defendant against a solicitor for not responding to a subpoena against the latter’s client. The Court in this respect said that the solicitor was not bound by any such subpoena and no action for contempt may be brought against the particular solicitor in question.
The earliest case pertaining to privileged communication was in the year 1931 before the Calcutta High Court. In examining the nature of privileged communication vis-a-vis the Indian Evidence Act, the Hon’ble High Court at Calcutta very pertinently pointed out that no privilege may be bestowed upon the communication between an advocate and his client before creation of the relationship.[8] Therefore any communication between an advocate and his client no matter how confidential may be presented before the court if such communication is made before the consolidation of their relationship in the professional capacity.
The next problem that was faced by the Indian Courts is that whether the privilege bestowed by the Indian Evidence Act as well as the Advocates Act and the Bar Council of India Rules apply to a practicing lawyer only or extends to their non-practicing counterparts as well. In order to examine this pertinent question the court decided to delve into the definition of the term ‘practice’. In the year 1952, the Hon’ble Supreme Court of India decided that the term practice also includes the authority to act on behalf of the client.[9] Therefore if any advocate decides to act on behalf of his client who necessarily involves out of court actions, then he is definitely in an advocate-client relationship which by the very nature of its existence is protected by the aforementioned provisions mentioned in the previous chapter. A notable observation by the Supreme Court in this matter is that the right to practice is a constitutional right and therefore the definition of practice cannot be altered by any subsequent statutory provisions. Thus the question of practicing was settled by the Court in 1952. However, the immediate question that arose was whether the privilege would extend to the same definition of practice or not. However it is to be noted that the question of privilege had not yet been determined by the Court vis-a-vis the term practice. Recently the Bombay High Court decided that the privilege does not apply to non-litigation matters.[10] Therefore if the same principle is to be accepted then advocates practicing in the area of Arbitration need not be bound by the privilege bestowed by the Indian Evidence Act. If that is indeed the case then until and unless a matter goes to the court the relationship between Advocate and Client does not effectively stay protected. Thus until and unless a matter goes to court for trial or other ‘litigations purposes’ the advocate is free to disclose any matter which he may deem fit. Thus the earlier judgement is rendered infructuous by this decision of the Bombay High Court. Thus the conflict between the judgement of the Bombay High Court and the Supreme Court is one that is yet to be resolved.
Another question that has been raised before the court is exactly what information gets the protection of the privilege? Is it any communication, or something specific in nature? The Judiciary of our country sought to answer this question in 1878 where it held that only information pertaining to confidential nature may be protected.[11] However the decision itself begs the question of what would be considered confidential in this respect. This question unfortunately is yet to be answered by the Indian Courts.
The Bombay High Court[12] in the year 1982 decided that on-practicing lawyers should have the same obligation as that of practicing lawyers. Therefore we see contradictory judgements by the same court in the same matter, which to an extent has been resolved by the Supreme Court. However the contradiction mentioned previously in this chapter is yet to be resolved.
The Supreme Court also delved deeply into the question of who is an advocate in a very recent matter.[13] In that case, the court was of the opinion that salaried employees working in the legal department of any organisation including a body corporate are not entitled to the protection bestowed by the various statutory and legislative provisions of the Indian Government. The reason behind this is that the employees are already under an obligation to look after the interest of their respective employers. In addition if they are bound by any additional privilege which in fact does nothing but restrict the working freedom of the employees it would be nothing but an undue hardship upon the employees. Further the employer is not a client of the employee per se. In an Advocate-client relationship there is some sense of equality present. However in the relationship between employer and employee the relation is guided by the principles of hierarchy which in turn causes the downfall of the entire purpose behind the provisions.
Therefore the Supreme Court was expedient to bring out the differences and set out the words of law in black and white and thus offer some clarity in one aspect of the question that had contradictory connotation with respect to the matter at hand.
In the concluding segment of this article we have some very interesting observations. First and foremost the law relating to privileged communication is very well laid down in various statutes and legislations. However the question of interpretation is something else altogether. The entire process of interpreting our laws relating to the matter concerned has been in turmoil since the inception of the question before the Hon’ble courts of our country. The main problem pertaining to the same has been culled out by the author into two steps:-
First whether the privilege applies to all advocates;
And secondly whether the same privilege is something that extends unequivocally despite someone not being a practicing lawyer.
While the question relating to the first part has been answered affirmatively, the second question is yet to be answered in a manner that would erase all doubts pertaining to the same.
The Indian Judiciary’s effort at resolving the disputes are quite lucid in so far as to define what is meant by the words practice. However the reluctance to include non-practicing lawyers within the ambit of the said privilege is something that lacks proper justification as of now. That being said it is safe to say that the codification of laws pertaining to attorney-client privilege in our country is somewhat on the progressive side thereby maintaining the sanctity of the noble profession.
Also it has been observed that even though there are provisions existing in the Indian legal system, the same has failed to cope up with the new emerging fields like the Intellectual Property Rights and thus the protection which is enjoyed by the attorneys in general is still not available for the professionals who are working in these new emerging sectors.
REFERENCES
[1] “Model Rules of Professional Conduct – Comment on Rule 1.6 Confidentiality Of Information – Center for Professional Responsibility” available at http://www.abanet.org/cpr/mrpc/rule_1_6_comm.html ( Last accessed on 08th, December, 2010).
[2] The Indian Evidence Act, 1872, s.126.
[3] The Indian Evidence Act, 1872, s.129.
[4] Shri D. R. Dhingra v. Department of Personnel & Training (DoPT), Central Information Commission, Appeal No. CIC/WB/A/2008/01475.
[5] Union of India through Ministry of Defence & Ors vs. Central Information Commission & Ors.,
[6] Wilden Pump Engineering Co. v. Fusfield, [1985] FSR 159.
[7] Berd v. Lovelace, [1577] Cary 62.
[8] Kalikumar Pal v. Rajkumar Pal, 1931 (58) Cal 1379
[9] Ashwini Kumar Ghosh v. Arabinda Bose, AIR 1952 SC 369.
[10] Lawyer’s Collective v. Bar Council of India & Ors., (2010) 2 Mah LJ 726.
[11] Memon Hajee haron Mohamed v. Abdul Karim, [1878] 3 Bom. 91.
[12] Municipal Corporation of Greater Bombay v. Vijay Metal Works, AIR 1982 Bom 6.
[13] Satish Kumar Sharma v. Bar Council of Himachal Pradesh, AIR 2001 SC 509.
BY SREYASI BANERJEE | NATIONAL LAW UNIVERSITY ODISHA