A Lawyer In Making

Attorney-Client Privilege

What They didn’t teach you at the Law School

Law School prepares you to think, write and research like a lawyer, but once you’re at the door of a law firm or a courtroom, there’s a whole new set of skills you need. The present series of articles aims to enrich a new lawyer with all these skills in order for him/her to excel.

A “privileged professional communication” is a protection awarded to a communication between a legal adviser and a client. A person seeks legal help when he is in deep legal trouble, and expects that whatever he discusses with his lawyer shall remain confidential as he would want to disclose everything related to his case to his lawyer. So, a legal privilege is essentially a right that exists for the sole benefit of the client and ensures full and frank communication between clients and lawyers without any fear of disclosure or incrimination.

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged communication that is attached to professional communication between a legal adviser and his client.

Section 126 of the Act provides the scope of privilege attached to professional communications in an attorney-client setting. It restricts attorneys from disclosing any communications exchanged with the client and/ or stating the contents or conditions of documents in possession of the legal adviser in course of and for the latter’s employment with the client.

Section 127 extends the privilege provided under section 126 to the interpreters, clerks and servants of the legal adviser.

Section 128 continues to bind the legal adviser from disclosing any information covered under section 126 unless the client calls the legal adviser as a witness and questions him on the same.

Section 129 lays down that no one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal adviser, unless he offers himself as a witness.

This implies that any person who seeks an advice from a practicing advocate, registered under the Advocates Act, would have the benefit of the attorney-client privilege and his communication would be protected under section 126 of the Act. This section would also extend to the employees of the advocate/law firm which could include accountants, paralegals, and such other employees.

The Bar Council of India Rules stipulates for all advocates (legal advisers) certain standards of professional conduct and etiquette. Part VI, Chapter II, Section II, Rule 17 of these Rules stipulates that “An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by section 126 of the Indian Evidence Act” thus reiterating the spirit of attorney-client privilege, breach of which will also lead to violation of the Bar Council Rules.

What not to disclose
As privileged communication ensures truthful and frank conversation of the client with his lawyer, there are certain matters which must be looked after by the lawyer to uphold the faith and trust of his client.

A legal professional is forbidden from disclosing without his client’s consent any communication made to the lawyer in course of and for the purpose of employment; or the contents or conditions of any document which came to his knowledge in the course of employment and for the purpose of employment; or any advice by the lawyer to his client in the course of and for the purpose of such an employment.

Exception to the Attorney-Client Privilege
A lawyer is usually required to respect his client’s confidentiality and not to disclose any information to a third party. But there are some exceptions to this privilege.
Section 126 of the Indian Evidence Act, 1872 has been designed solely to protect a client’s interest, therefore it would not be considered as a privilege if the client himself discloses any conversation between him and his lawyer; or if the lawyer with his client’s express consent discloses such communication.

The lawyer should essentially disclose information learned from his client that may prevent someone’s death or serious injury.

Also, there is no privilege attached to any communication between an attorney and a client against a person who holds joint interest with the client on the same subject matter.
If the client discloses something to his advocate and the advocate is called as a witness, then under such circumstances also the privilege does not work. However, unless the client offers himself as a witness, he cannot be compelled to disclose any confidential matter in the court.

Furthermore, there are certain matters, which if protected, can lead to some serious consequences. Therefore, such matters are not protected by the attorney-client privilege, such as, any communication made for an unlawful purpose with the intention of committing a crime; or if it is observed by the lawyer that in course of his employment any type of crime or fraud has been committed by his client.

Position of In-house lawyers
During the period of employment, in-house lawyers cannot practice as advocates; so, they stand outside the ambit of section 126 of the Indian Evidence Act. Therefore, any kind of professional communication between an in-house counsel and employees, directors of the company is not protected as a privileged communication.

But the employment contract of an in-house counsel generally contains a confidentiality clause which protects the confidentiality of any information. However, since the “confidentiality clause” and “privileged communication” are two different things, therefore, subject to certain contractual exceptions, a client can claim damages from an in-house counsel in case of breach of a confidentiality clause.

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