Confidentiality and non–disclosure are prerequisites in an attorney-client setting. This feature is known as “Privileged Professional Communication,” which entitles the client to disclose all the necessary information to its legal advisor or attorney without any disclosure on the part of the attorney. It is mentioned in Section 126-129 of the Indian Evidence Act 1872. It is pertinent to note that the privilege is available only to the client, and it does not extend to the attorney. However, there are certain circumstances in which privilege does not exist. The circumstances are as follows:
It is the duty of an attorney or lawyer to provide proper legal assistance to its clients in case of any kind of legal trouble. To ensure proper legal assistance on the part of the attorney, it is ensured that the communication between an attorney and client is kept confidential so that the client can provide all the necessary and confidential information to the attorney without fear of disclosure on the part of attorney. The importance of the attorney-client privilege was explained in the case of Mc Clure (2001) [1] by the Canadian Supreme Court.
“The privilege is fundamental to the justice system. The law is a complex web of interests, relationships, and rules. The integrity of the administration of justice depends upon the solicitor’s unique role who provides legal advice to clients within this complex system.”
As mentioned earlier, in privileged communications, non-disclosure and secrecy are of utmost importance. However, privileged communications are not only confined to the attorney-client relationship. It is also present in the case of communications between doctor-patient, husband–wife, etc, and is recognized by the Indian Evidence Act of 1872.
RULES FORMULATED BY THE BAR COUNCIL OF INDIA
Privileged Professional communications between an attorney and a client in India are also governed by Section 126 of the Advocates Act, Bar Council of India Rules(BCIR) . According to Part VI, Chapter ii, section ii, Rule 17 of the Bar Council of India Rule
“ An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by section 126 of the Indian Evidence Act.”
In India, any person who is registered as an advocate under the Advocates act, 1961, comes within the ambit of attorney-client privilege under section 126 of the Indian Evidence Act, 1872. It also includes employees/associates of the advocates, law firms, accountants, paralegals etc. In the case of Municipal Corporation of Greater Bombay v. Vijay Metal works [2] the Supreme Court held that a salaried employee who acts as a legal advisor on behalf of his clients, the communications initiated between legal advisor and the client would come within the ambit of privileged communication. However, one of the most important criteria for communication between an advocate/attorney and client to come within the ambit of attorney-client privilege is that the legal advisor should be enrolled as an advocate with the Bar Council of India.
FORMATION OF AN ATTORNEY-CLIENT PRIVILEGE
An attorney-client privilege is established when any person seeks legal advice from a person who is registered as an advocate under the Advocates Act, 1961, and the disclosure of the information is prohibited as per Section 126 of the Evidence Act. However, the advice given by an attorney should be in the capacity of an advocate and not in the capacity of a friend. If any advice of a legal nature is rendered by an advocate in the capacity of a friend, then it would not come within privileged communications, and there would be no formation of an attorney-client privilege.
TIME PERIOD OF PRIVILEGE
An attorney-client privilege exists not only during the time when the attorney acts as a counsel for the client but even after the time when the attorney ceases to be a counsel of the client that is the attorney-client privilege is maintained throughout. This feature is basically included in the Indian Evidence Act to maintain confidentiality and secrecy throughout in the communications initiated between an attorney and client and prevents the clients from landing in any kind of trouble in the future on the basis of such disclosure. This was held in the case of Swidler and Berlin v. United states [3] and K Poonamal v. A Loganathan [4] . Thus, the attorney-client privilege exists throughout unless it is waived by the client on account of certain exceptions where the attorney-client privilege ceases to exist.
PARTIES INVOLVED IN PRIVILEGED COMMUNICATIONS
Privileged professional communication is initiated only between an attorney and the client, and the privilege ceases to exist when the information provided by the client to his respective attorney disseminates to other persons or any third party. However, the information provided by the client in the presence of a person who is an assistant of the attorney or works closely with the attorney, the attorney-client privilege will still operate under such circumstances.
WHAT COMES WITHIN PRIVILEGED COMMUNICATIONS
Communications that take place between an attorney and client come within the ambit of Privileged Professional Communication. The communications that come within this ambit are- communications made for the purpose of obtaining advice for litigation, communications that are made to collect evidence, and all the communications that are initiated between an attorney and client for extracting information that would lead to evidence and drafting of pleadings. Apart from this, the documents that are prepared by the clients as part of the legal proceedings are also accorded protection as per attorney-client privilege. It was held in the case of Larsen and Toubro v. Prime Displays Ltd. [5]
POSITION OF IN-HOUSE COUNSEL
In India, communications between an in-house counsel and clients do not come within the ambit of privileged professional communications as the in-house counsel cannot practice as an advocate, and the functions to be performed by the in-house counsel are not strictly legal in nature. In the case of Satish Kumar Sharma v. Bar Council of Himachal Pradesh [6] it was held by the Supreme Court that if an employee is not discharging the functions of an advocate on behalf of his client and his nature of work is such that he does not have to plead on behalf of his client then he ceases to be an advocate. Thus, in India, communications initiated between an in-house counsel and clients are not considered as privileged communications since in-house counsels are full-time salaried employees as per Part VI, Chapter ii, Section VII, Rule 49 of Bar Council of India Rules (BCIR). However, an in-house counsel has to sign a “ confidentiality clause” as part of his employment contract, and in the event of a breach of the confidentiality clause, the client is entitled to claim damages from the in-house counsel, but there is a difference between “ privileged communication” and “confidentiality clause” and the communications initiated between an in – house counsel and clients are not accorded the protection of “ Privileged communications” as per the Indian Evidence Act, 1872.
CONCLUSION
As mentioned earlier, secrecy is of utmost importance while initiating attorney-client communication. It forms the cornerstone of an attorney-client relationship. However, privileged communications are not only extended to attorney-client relationship; it is also present in the case of relationship between spouses, doctor-patient etc. In such communications, confidentiality is of the essence, and it is ensured that no breach of trust occurs on the part of the other party. In attorney-client privilege, the privilege is of a more restrictive nature since it is available only to the clients, and it does not extend to the attorney; due to this feature, the client can voluntarily disclose any information that would result in the loss of reputation of the attorney. Despite the lacunaes, present in the existing attorney-client privilege, it is an essential feature that is mentioned in the Indian Evidence Act, 1872 (Section 126-128); apart from this, it also finds mention in the Advocates Act, Bar Council of India Rules. Thus, it is ensured that an attorney-client privilege is maintained throughout in order to provide proper legal service to the client so that the client can disseminate all the necessary information to the attorney.
REFERENCES
[1] R Vs Mc Clure (2001) 1 SCR 445
[2] Municipal Corporation of Greater Bombay vs Vijay Metal Works , AIR 1982 Bom 6
