Attorney-Client privilege refers to a client’s right to refuse any disclosure of sensitive information and to prevent the attorney from disclosing the information to a third party. In other words, it is a type of understanding between the attorney and the client where any information shared by the client to the attorney cannot be further disclosed to any other person, by the attorney.This essentially refers to the rights available to the client for the protection of their own interest.
It helps in ensuring that the information shared between the client and attorney is free from the fear of incrimination and disclosure. The main motive behind this concept is that the client is able to disclose everything to their lawyers so that their interest is completely represented to them.
Why is Attorney-Client Privilege Important?
It provides the client an assurance of confidentiality while obtaining legal advice.
It encourages a mode of frank communication between the attorney and the client.
The duty continues even after the attorney-client relationship has ended.
What does it mean in India
In India, professional communication between the attorney and the client is protected under Evidence Act, 1872, the Advocates Act, 1961 and the Bar Council of India Rules. Section 126-129 of the Evidence Act, 1872 lays down the principles of common law on professional communication between attorney and client. In India, any individual who seeks advice from an advocate who is registered under the Advocates Act, would establish an attorney-client privilege and the disclosure of information will be protected under Section 126 of the Evidence Act,1872. The Attorneys cannot, without the consent of the client:
Disclose any part of the communication made by the client during his course of employment.
Disclose any content from the documents with which he has become acquainted in the course of his employment.
Disclose any advice given by him to the client in the course of his employment.
However, there are certain exceptions to the privilege and the law does not protect following from disclosure:
Disclosure made with the client’s consent.
Any communication made in the advancement of any illegal purpose.
Any fact coming to the awareness of the attorney, barrister, pleader or vakil, showing that any crime or fraud has been committed since the commencement of his employment on the concerned matter.
To claim the privilege provided under Section 126 of the Evidence Act, a communication by the party to his pleaser is necessary which should be confidential in nature. Also, there is no privilege to communications made before creating a relationship between the client and the attorney.
Further, section 129 states that no one shall be compelled to disclose any confidential communication that has taken place between the attorney and the client, to the court, unless they have offered themselves as witness. In such cases they are compelled to disclose the information that is necessary to be known in order to explain any evidence that has been provided.
Communications between an attorney and client are privileged even if they contain information from any third party. Prohibition of disclosure extends to interpreters, clerks and servants of the attorneys. Even if the attorney-client relationship continues after the employment has ceased, there is no privilege to the communications made before the creation of such relationship.
Bar Council of India Rules
These restrictions on disclosure of the attorney-client privilege are further supported by the provisions of the Bar Council of India Rules, enacted under the Advocates Act, which governs the conduct of the advocates in India. The BCI Rules set certain standards of professional conduct and etiquette for all attorneys. Rule 7 and 15 of the BCI Rules on An Advocate’s Duty towards the Client states:
A violation of the above Rules would subject an advocate to disciplinary proceedings. It is important to note that the privileged communication between the attorney and the client is not admissible as evidence in the court of law.
Position of An In-House Counsel
There are certain legal areas that are of certain types of business. An In-House lawyer is employed by these businesses to work in-house on any legal matter. The business may employ in-house counsel as, either a lawyer or an advocate. If the in-house counsel is appointed as a lawyer, then he is not bound by the attorney-client privileges that fall under the ambit of Section 126 of the Indian Evidence Act, as the act only deals with advocates, barrister, pleaders and vakils. Hence, any kind of communication between the in-house lawyer and the directors of the company will not be protected as a privileged communication.
In the case of Satish Kumar Sharma v. Bar Council of Himachal Pradesh (AIR 2001 SC 509), the Supreme Court held that "If a full-time employee is not pleading on behalf of his employer, or if terms of employment are such that he does not have to act or plead but is required to do other kinds of functions, then he ceases to be an advocate. The latter is then a mere employee of the government or the body corporate".
Flaw in the Attorney-Client Privilege
A major flaw in the Attorney-Client privilege is that the entire procedure is dependent on loyalty, which can be misused by either of the two parties. An attorney while trying to show his loyalty towards his client can be disloyal to the state which might lead to unfair trail and injustice. Again, if the attorney is loyal towards the state, then he has to be disloyal to his client.
In the case of M. Yovas & Ors. v Immanuel Joseph & Ors., it was seen that the advocate of the opposing party was summoned to be the witness to testify against his client. The Kerala High Court held that it was proper to refuse to be a witness in the court of law in order to maintain and uphold the Attorney-Client Privilege.
It is evident that the attorney-client relation is considered as a privilege document which is vital for an effective disposal of dispute. An attorney is under the moral obligation to respect the confidence and not to disclose his client’s sensitive information or documents to any other party in course of his employment without the prior consent of the client. Even though there are certain limitations related to the in-house lawyers and the absence of protection of communication made to any third party, the attorney-client privilege is considered to be an important aspect, as, without it no one will consult an advocate or attorney for his defence or enforcement of his own rights.