Do you know what your attorney-client privileges are in India?
Do you know the consequences of telling an advocate your secret while consulting?
The purpose of this post is to discuss an attorney’s obligation towards his clients of not disclosing any communication to any third-party.
The ambit of Section 126 of the Indian Evidence Act, 1872, exceptions, purpose and other relevant features will be put forward and discussed.
Table of Contents
- What Does Attorney-Client Privilege Mean?
- Why does it exist?
- What is the Attorney-Client Privilege law in India?
- Provisions of Attorney-Client privileges under the Evidence Act, 1872
- Why is this privilege important?
- Violation of Bar Council Rules by breaking Attorney-Client Privilege
- Position of In-House Counsel
- Complications with Attorney-Client privilege
Attorney-Client privilege is a “client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.”
In simple words, it is a kind of understanding between the client and the attorney that any information disclosed by the client to his attorney, during the course of employment cannot be further disclosed by the attorney. This privilege not only binds the attorney but also interpreters, assistants, clerks, etc of the attorney.
- It gives the client the assurance of confidentiality in case of obtaining legal advice.
- It encourages full and frank communication between an attorney and his client.
- The duty continues even after the end of an attorney-client relationship.
Section 126 of the Indian Evidence Act, 1872 is the legal provision that outlines Attorney-Client Privileges. It lays down 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 a barrister, attorney or vakil was or was not directed to such fact by or on behalf of his client.”
The right of non-disclosure is not absolute and is subject to certain restrictions to uphold general principles of common law while also dispensing justice. There are two exceptions to these privileges:
- If a person asks his attorney to commit fraud, such a conversation cannot be protected under the ambit of Attorney-Client privileges. This is because according to the Indian Evidence Act, 1872, any communication made to the attorney in furtherance of a criminal act is not protected under non-disclosure.
- The second exception is that any observation made by the attorney during the course of employment, which is not explicitly stated by the client but indicates fraud or any crime committed, then such an observation will not be protected under non-disclosure.
Disclosing information to your attorney is critical as it helps them structure legal arguments in a better way to improve the case. For e.g., During trial if your opposing party comes up with a piece of damning evidence which you hid from your attorney, it would be close to impossible for your attorney to defend you from that, as since it was a courtroom discovery, he would be unaware about the existence of the evidence.
However, it often happens that a client doesn’t want to reveal all information to his attorney as he is afraid of the information being leaked. A client would be much more relaxed and would be willing to disclose to his attorney all relevant facts of the current case if he was assured that his attorney is legally not allowed to disclose this information further.
These privileges are further protected as according to law, no person can be forced to reveal any communications made between him and his attorney. However, if a client wishes to have his attorney as one of the witnesses in the case, then the attorney will not be bound by the privileges.
The Indian Evidence Act, 1872 isn’t the only provision protecting attorney-client confidentiality.
The Bar Council of India Rules (BCIR) states that every attorney must exhibit professionalism and have a certain level of conduct and etiquette while conversing with their clients. The BCIR stipulates that “An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.”
In-house lawyers are those who are employed by a business to work in-house on legal matters.
A business may employ either a lawyer or an advocate as the in-house counsel. A lawyer refers to a person who is learned in the law and may or may not be enrolled with a Bar Council.
An advocate, on the other hand, is a person who has been licensed by the Bar Council of India to practice law in court.
If the in-house counsel is a lawyer, he is not bound by the Attorney-Client privileges under Section 126 of the Indian Evidence Act, (because the Act speaks only about barristers, attorneys, pleaders or vakils.
However, if the in-house counsel is an advocate then he is bound by the provision of Attorney-Client privileges under Section 126 of the Indian Evidence Act, because the term vakil and advocate are synonymous as per Section 4 of the Legal Practitioners Act, 1879.
The position of an advocate with regards to attorney-client privileges isn’t absolute and depends on the nature of work and the type of employment of the advocate.
If an advocate does all the legal work for the firm, apart from pleading in court, he is merely an employee in the firm and is not bound by Attorney-Client privileges.
If the advocate works as a full-time salaried employee on legal matters of the firm, he is no longer recognized as the advocate of the firm and is hence not bound by attorney-client privileges. In this case, he might be bound by any other agreement related to preserving confidential information.
Attorney-Client privilege works on the quality of loyalty and while loyalty is usually denoted in a positive sense, it can also be misused. An attorney showing loyalty to his client can be disloyal to the state which leads to unfair trials, injustice and slow carriage of justice. However, an attorney who is loyal to the state must be disloyal to his client, which may lead to loss of reputation of the client and defamation.
In the case of M. Yovas and Ors. v. Immanuel Joseph and Ors, the opposing counsel was summoned to testify against his client. The Kerala High Court in this instance said that it was proper to refuse to be a witness in the court in a bid to uphold Attorney-Client privilege.
Edited by Siddhant Pandey
- Bryan A. Garner, Black’s Law Dictionary, p. 1391 col. 2, 10th ed. 2014. ↑
- Section 127 of the Indian Evidence Act, 1872. ↑
- Provision 1 of Section 126 of the Indian Evidence Act, 1872. ↑
- Provision 2 of Section 126 of the Indian Evidence Act, 1872. ↑
- Section 129 of the Indian Evidence Act, 1872. ↑
- Section 128 of the Indian Evidence Act, 1872. ↑
- Part VI, Chapter II, Section II, Rule 17 of Bar Council of India Rules. ↑
- Merriam-Webster Legal Dictionary. https://www.merriam-webster.com/legal/house%20counsel ↑
- Section 4 of The Legal Practitioners Act, 1879 ↑
- Part VI, Chapter II, Section VII, Rule 49 of BCIR. ↑