A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s
informed consent, the lawyer must not reveal information relating to the representation. This
contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby
encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even
as to embarrassing or legally damaging subject matter. The lawyer needs this information to
represent the client effectively and, if necessary, to advise the client to refrain from wrongful
conduct. Almost without exception, clients come to lawyers in order to determine their rights and
what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon
experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
A lawyer is under a moral obligation to respect the confidence reposed in him and not to disclose
communications which have been made to him in professional confidence i.e. in the course and
for the purpose of his employment, by or on behalf of his client, or to State the contents or
conditions of documents with which he has become acquainted in the course of his professional
employment, without consent of his client. If such communications were not protected, no man
would dare to consult a professional adviser, with a view to his defense, or to the enforcement of
his rights, and no man could safely come into a Court, either to obtain redress, or to defend
himself. With the increase in the number of foreign companies setting up businesses in India, the law on the issue of lawyer-client confidentiality needs to be understood so as to ensure that multinational businesses can share their concerns with the lawyers without the risk of corporate communications being misused against them.
Privileged communications-
A “privileged professional communication” is a protection awarded to a communication between
the legal adviser and the client. It is out of regards to the interest of justice, which cannot go on
without the aid of men skilled in jurisprudence in the practice of Courts, and in those matters
affecting rights and obligations, which form the subject matter of all judicial proceedings. If the
privilege did not exist at all, everyone would be thrown upon his own legal resources. Deprived
all professional assistance, a man would not venture to consult any skilled person, or would only
dare to tell his counsel half his case. The position of law in India on privileged professional communications between clients and legal advisors are dealt under sections 126 to 129 of the Indian Evidence Act, 1872. Section 126 of the Act provides the scope of privilege attached to professional communications in a client attorney setting. It restricts attorneys from disclosing any communications exchanged with the client and stating the contents or conditions of documents in possession of the legal advisor in course of and for the purpose of the latter’s employment with the client. The section also provides certain exceptional grounds on which such privilege shall stand denied, being furtherance of any illegal purpose or facts coming to the awareness of the attorney showing that either crime or fraud have been committed since the commencement of the attorney’s employment on the concerned matter.
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 professional adviser, unless he
offers himself as a witness in which case he may be compelled 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 other.
It is highly desirable that communication with professional advisers should be unembarrassed by
any such fears as a contrary decision would give rise to. Advice would have to be given on
maimed and distorted statements, and useless litigation would thus be promoted in numberless
cases. Lastly, a compulsory disclosure of confidential communication is so opposed to the
popular conscience on that point that it would lead to frequent falsehoods as to what had really
taken place. Privilege extends to all communications (including direct communications or
through agents) and all documents generated for the purpose of rendering legal advice (including letters and instructions to legal advisers, opinions from legal advisers, all working papers and drafts).
There is no privilege to communications made before the creation of relationship of pleader and
client. To be privileged under Section 126, Evidence Act, a communication by a party to his
pleader must be of a confidential nature.
Privileged communications-
It has never been questioned that the privilege protects communications to the attorney’s clerks
and his other agents (including stenographers) for rendering his services. The assistance of these
agents being indispensable to his work and the communications of the client being often
necessarily committed to them by the attorney or by the client himself, the privilege must include
all the persons who act as the attorney’s agents.
In Dabney v Investment Corp. of America, the Court held, “Attorney-client privilege applies
only to members of bar or their subordinates; protected subordinates include any law student,
paralegal, investigator or other person acting as agent of duly qualified attorney under
circumstances that would otherwise be sufficient to invoke privilege; but no privilege exists for
law student who performs duties of attorney, is regarded and treated as attorney, and is made
privy to certain confidential information that would have been disclosed only to an attorney,
where law student is acting on his own.”
ENGLISH LAW-
In England, the main category of privilege afforded to a communication is legal professional
privilege. Further there are two types of legal professional privilege:
- Legal advice privilege: It protects communication between a lawyer in his professional
capacity and his client provided they are confidential and are for the purpose of seeking or giving
legal advice. - Litigation privilege: the second type of legal professional privilege arises only after litigation
or other adversarial proceeding are commenced or contemplated. It is wider than legal advice
privilege and protects all documents produced for sole and dominant purpose of the litigation,
including all communication between
A) a lawyer and his client,
B) a lawyer and his non professional agents,
C) a lawyer and a third party.
Comparison of English law and Indian law-
The privileges under the English law have an exception similar to that under Indian law but the
only difference is that under the Indian law, any communication made in furtherance of an illegal
purpose is not privileged. Under the English law, the purpose must be criminal and not merely
illegal.
An appraisal of Indian laws shows that the need for confidentiality of information shared
between lawyers and their clients has been recognized and the communication between lawyers
and clients has been privileged. The Bar Council rules provide for high standards of professional
ethics for Indian lawyers, comparable to those in other jurisdictions. Also, with the growth of
Legal Process Outsourcing in India, the concerns by clients towards data security have been
raised. Lawyers in India have a duty imposed upon them under law to maintain confidentiality of
their client’s information.
Whether documents are privileged, and therefore shielded from disclosure to investigators or
opposing parties in litigation, can be a complex question, with the answer having a significant
impact on the outcome of a case. Especially for multinational companies, the rules governing
attorney-client privilege are therefore critical. It is particularly important for in-house counsel to
be aware of the rules, because the privilege rules for their communications vary significantly by
jurisdiction. In some cases, in-house counsel are never able to assert the privilege for their
communications, while in others in-house counsel are able to take advantage of full privilege
protection. And in still other jurisdictions, the rules are differentiated and remain unsettled. Before starting business in a particular jurisdiction, a multinational company must clearly
ascertain the scope of laws relating to attorney-client privilege, as this can ensure that the
corporate communications are well protected and can facilitate business avoiding undesirable
litigation.
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
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