Just imagine if communication between an advocate and client were not protected, would anyone dare to knock the doors of Hon’ble Courts and ask for justice. Obviously, not.
In order to prevent this situation, a rule termed as “privileged professional communication” came into the books of statute. Privilege means a special right, advantage, or immunity granted or available to a particular person.
A “privileged professional communication” is a protection awarded to a communication made in any form between the advocate and the client. The intent behind providing this privilege is to protect the interest and the privacy of the client.
In “Pankaj Versus State of Maharashtra”, the Hon’ble Bombay High Court on 06.04.22 held that the lawyer-client relationship is a fiduciary one; any act which is detrimental to the legal rights of clients needs to be punished.
In India, professional communication between the attorney and the client is protected by law under Indian Evidence Act, 1872 and the Bar Council of India Rules.
What is advocate-client privilege?
No specific definition of “Advocate-client privilege” has been provided under Indian Evidence Act or any other law.
Advocate-client privilege is a rule that protects the confidentiality of communications made between a lawyer and his or her client. It is an immunity given to the communication made between advocate and his or her client for the purpose of protecting the interest of the client.
Objective of advocate-client privilege
- It provides an assurance to the client that his or her information will remain confidential while obtaining legal advice from an advocate.
- It encourages frank communication between the advocateand the client.
- It protects the rights of the client who is seeking
Exception to advocate- client privilege
There are certain exceptions which are not protected from privilege such as:
- If disclosure of communication is made with client’s consent.
- If communication is made in furtherance of any illegal purpose.
- Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment showing that any crime or fraud has been committed since the commencement of his employment.
Indian Evidence Act, 1872
Section 126 to 129 of the Indian Evidence Act, 1872 deals with the concept of advocate-client privilege
Section 126 of Indian Evidence Act, 1872 says 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 barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation.—The obligation stated in this section continues after the employment has ceased.
According to Section 126 of the Indian Evidence Act, 1872, an advocate is not permitted to without client’s consent to disclose:
- Any communication made between him and his client during the course of employment.
- Any contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment.
- Disclose any advice given by him to the client in the course of his employment.
An explanation is also provided which says that the obligation upon the advocate continues even after the employment has ceased.
Section 127 of the Indian Evidence Act, 1872 provides that:
The provisions of section 127 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils.
This Section says that protection provided under Section 126 of the Indian Evidence Act,1872 have also been accorded to interpreters, and the clerks or servants of barristers, pleaders, attorneys, and vakils.
Section 128 of The Indian Evidence Act, 1872 says that:
If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126 and if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.
Section 128 of the Act is considered as a supplement to Section126 which says that if the party gives evidence in respect to the matter covered by confidential information then in such case, it would not mean that the party has given consent for such disclosure. It also states that if the party himself calls an advocate and ask questions pertaining to professional communication, then in such case it would mean that the party has given consent for such disclosure.
Section 129 of The Indian Evidence Act, 1872 says 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 communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
According to Section 129 of Indian Evidence Act,1872 no person shall becompelled to reveal to the court any confidential communication which has taken place between him and his advocate unless he presents himself as a witness in order to explain the evidence which has been given by him.
Bar council of india rules
Rule 17 of Part VI Chapter II, Section II of BCI Rules-An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.
Rule 15 of Part VI Chapter II, Section II of BCR Rules– It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
RULE 49 of Part VI, Chapter II,Section VII of BCR Rules- An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment.
JUDICIAL OPINION
Upjohn Co. Versus United States, 449 U.S. 383
The Hon’ble Supreme Court of United States held in this case that the purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.
- v. McClure, 2001 SCC 14
In this matter, the Hon’ble Supreme Court of Canada held that the solicitor-client privilege is a principle of fundamental importance to the administration of justice as a whole.
Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.
Kalikumar Pal versus Rajkumar Pal, AIR 1932 Cal 148
The Hon’ble Calcutta High Court held in this present case that on general principles, and under Section 126, Evidence Act, there is no privilege to communications made before the creation of relationship of pleader and client.
Memon Hajee Haroon Mahomed versus Abdul Karim, [1878] 3 Bom. 91.
In this case, the Hon’ble Bombay High Court opined that a communication by a party to his pleader must be of a confidential nature.
Municipal Corporation of Greater Bombay versus Vijay Metal Works, AIR 1982 Bom 6
The Bombay High Court in this case held that a salaried employee who advises his employer on all legal questions and also other legal matter would get the same protection as others under Sections 126 and 129 of the Evidence Act and even otherwise these communications are properly covered by these sections.
Satish Kumar Sharma versus Bar Council of Himachal, air 2001 sc 509
The Hon’ble Supreme Court held that incase if a full time employee is not pleading on behalf of his employer, or the term of the employment is such that he can do other functions or is not required to plead then such employee is mere employee of the government or body corporate and ceases to be Advocate. The judgement also referred to the Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules, and sated that an advocate cannot be a full time salaried employee of any person, government, firm or corporate body as long as long as he practices.
Dr Karamjit Singh Versus State of Punjab, AIR 2010(NOC) 699 (P&H)
In this case, the Hon’ble Punjab & Haryana High Court held that communications made between advocates and clients are not entitled for access under Right to Information Act, 2005.
CONCLUSION
According to the Black’s Law Dictionary, advocate-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.”
Section 126 expressly prohibits lawyers from disclosing any communications made with the clients as well as the advice given to them. It also prohibits them from stating the contents or conditions of documents during the course of the professional engagement. This obligation upon the lawyer to not to disclose communication continues even after the employment. Whereas Section 129 of the Act prohibits clients unlike Section 126 from disclosing any legal opinion to the Court which they have obtained from their advocates.
In “Justice K.S. Puttaswamy (Retd) Versus Union Of India And Ors, Writ Petition (Civil) No. 494 of 2012”, the Hon’ble Supreme Court held that Professional Communication between advocate and client fall within the ambit of the right to privacy.
We can sum up by saying that the relationship between lawyer and client is a fudiciary one. Fudiciaryrelationship means the relationship where one person places trust, confidence and reliance on another.
This privilege is granted to preserve confidential legal communication so that the client without any fear can share information with the lawyer which thus, leads to better administration of justice.