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Introduction
It has been observed that a sound system of the administration of
justice should possess three ingredients, namely a well planned
body of law based on wise concepts of social justice, a judicial
hierarchy comprised of the Bench and the Bar, learned in the law
and inspired by high principles of professional conduct and
existence of suitable generation to ensure fair trial.[1]
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.[2]
The following discussion compares the laws dealing with privileged
communications in India and England.
Indian law:
In India, Sections 126 to 129 of the Indian Evidence Act, 1872
deal with privileged that is attached to professional
communication between a legal adviser and the client. Section 126
and 128 mention circumstances under which the legal adviser can
give evidence of such professional communication. Section 127
provides that interpreters, clerks or servants of legal adviser
are restrained similarly. Section 129 says when a legal adviser
can be compelled to disclose the confidential communication which
has taken place between him and his client.
Section 126 states that no barrister, attorney, pleader or Vakil
shall at any time be permitted to
1. disclose
§ any communication made to
him by or on behalf of his client or
§ any advice given by him to
his client in the course and for the purpose of his employment;
2. to state the contents or conditions of any document
with which he has become acquainted in the course and for the
purpose of his employment.
There are certain exceptions to this rule. This Section does
not protect from disclosure:
1. any communication made in furtherance of any illegal
purpose;
2. any fact observed in the course of employment showing that
any crime or fraud has been committed since the commencement of
the employment.
The protection afforded under this Section cannot be availed of
against an order to produce documents under Section 91[3]
of the Code of Criminal Procedure. The document must be produced,
and then, under Section 162[4] of
this Act, it will be for the Court, after inspection of the
documents, if it deems fit, to consider and decide any objection
regarding their production or admissibility.[5]
Under Section 126, it is not that every communication made by a
person to his legal adviser is protected from disclosure but only
those communications made confidentially with a view to obtain
professional advice are privileged. It should also be remembered
that the privileged extends only after the creation of
pleader-client relationship and not prior to that.[6]
Also, communication must be made with the lawyer in his capacity
as a professional adviser[7] and not
as a friend[8].
Considering the exception to this rule, existence of an illegal
purpose will prevent any privilege attaching to any communication.
Thus, communications made with a view to carry out a fraud are not
privileged.[9]
The scope of Sections 126, 27 and 128 is different from that of
Section 129. The former Sections prevent a legal adviser from
disclosing professional communication. Section 129 applies where a
client is interrogated, whether he is a party to a suit or not.
Section 129 states that no person shall be compelled to disclose
in the Court any communication between him and his legal adviser
unless he offers himself as witness. Thus, Section 129 makes a
person immune from compulsory process. This immunity may extend to
third parties, such as consultant who are recruited to help with
the preparation of the case for trial. However, once the material
has got out, it should not be kept out of Court on account of its
confidential nature any more than would any other confidential
matter.[10] Also, if a party becomes
a witness of his own accord he shall, if the Court requires, be
made to disclose everything necessary to the true comprehension of
his testimony.[11]
In a recent case, an unsigned and undated letter which was
allegedly written by the advocate-accused to his client-terrorist
to remain absconding was held to be professional communication and
not ‘ abetment’ and thus could not be used against the advocate.[12]
But in another case, the Gujarat High Court held that disclosure
was allowed where the client desired to obtain decree for money on
basis of forged promissory note.[13]
The rule is established for the protection of the client, not of
the lawyer, and is founded on the impossibility of conducting
legal business without professional assistance, and on the
necessity, in order to render that assistance effectuated, of
serving full and unreserved intercourse between the two[14].
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:
1. Legal advice priviledge: 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. This type of legal priviledge
is similar to that under Section 126 of the Indian Evidence Act.
2. 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 lawyer and his client
§ a lawyer and his non
professional agents
§ a lawyer and a third party.
This type of privilege has similar protection under Section 127
and 129 of the Indian Evidence Act.
The above privileges 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.
In England, the Court of Appeal recently decided a landmark case
on legal advice privilege. The decision given in "Three Rivers
District Council and others v. Governor & Company of the Bank of
England" [15] is likely to have a
profound impact on the way in which such privilege is handled due
to which companies may need to reconsider the organisation of
their internal systems.
The facts of the case were as follows: -
He question of legal advice priviledge arose in the context of the
ongoing litigation between liquidators of the BCCI and the Bank of
England. In 1991, following the collapse of the BCCI, the
government set up a Bingham Inquiry to investigate the Bank of
England’s supervision of BCCI and to consider whether the action
taken by UK authorities were appropriate and timely. The Bingham
inquiry Unit (BIU), an internal body at the Bank of England which
consisted of three Bank officials, was set up to deal with all
communications between the Bank of England and the Bingham
Inquiry. The Bank of England was advised during the inquiry by the
Bank’s solicitors.
The liquidators of BCCI subsequently brought proceedings against
the bank of England for misfeasance in public office relating to
events emerging from the collapse of the BCCI. In these
proceedings, the liquidators sought disclosure of certain
documents prepared by the Bank employees and ex employees that
came into existence at the time of the Bingham Inquiry, which were
classified by the Court of Appeal as follows:
(i) documents
prepared by the Bank’s employees that were sent over to the bank’s
solicitors;
(ii) documents prepared
by the Bank’s employees with a dominant purpose of the Bank
obtaining legal advice which were not sent over to the bank’s
solicitors;
(iii) documents prepared
by the Bank’s employees without the dominant purpose of the Bank
obtaining legal advice but were sent over to the bank’s
solicitors;
(iv) documents under the
above three points prepared by the bank’s ex employees.
The Bank refused to disclose these documents on the ground that
they were covered by the legal advice priviledge. The claim for
priviledge was upheld at first instance. However, the Court of
Appeal reversed the decision and decided that the documents were
not covered by the priviledge.
The decision of the Court of Appeal accepted the basic principle
of law that documents passing directly between the lawyer, acting
in his professional capacity, and the client are protected by the
legal advice priviledge, where the dominant purpose of those
communication is to obtain legal advice. The Court of Appeal has
discussed some important essentials of the legal advice
priviledge: -
1. Who is he client?
2. What constitutes legal advice priviledge?
3. Whether evidential material obtained from the
employees prior to the communication is excluded from priviledge?
1. Who is the client?
The Court took a narrow view of who actually constitutes the
client as opposed to an employee of the client. While the Court
accepted that a corporation could only act through its employees,
it held that this in itself was not sufficient to protect al
communication by an employee to the employer’s lawyer. But the
Court gave no guidelines as to when an employee may be deemed to
be a client and when it may not.
2. What constitutes legal advice priviledge?
This question was left open but the Court suggested that obtaining
information for employees and ex employees in the context of an
investigation might be for the dominant purpose for enabling
evidence to be presented to the investigation rather than to
obtain legal advice, and so again fall outside the priviledge.
Thus, legal advice had to be distinguished from other forms of
assistance a lawyer might provide.
3. Whether evidential material
obtained from the employees prior to the communication is excluded
from priviledge?
The Court appeared to treat preparatory documents as no more than
the raw material on which the client can thereafter seek legal
advice. The apparent consequence of the Court’s decision is that
all the following communication may not be protected
by legal advice priviledge:
(i) communication and
documents prepared by the client’s employees, if not deemed to be
the client, with the dominant purpose of obtaining legal advice,
but not sent to the client’s lawyers;
(ii) communication and
documents prepared by the client’s employees, if not deemed to be
the client, with the dominant purpose of obtaining legal advice,
which are intended to be sent to and are in fact sent to the
client’s lawyers;
(iii) communication and
documents prepared by or obtained from independent third parties
such as expert non legal advisers, i.e. brokers, economist or
accountant ( and including ex employees) with a dominant purpose
of obtaining legal advice, and then sent to the client but not
sent to the lawyer; and
(iv) communication and
documents prepared by independent third parties (including those
referred to in the third point) with a dominant purpose of
obtaining legal advice for a client and passed by the third party
to the client’s legal adviser.
Practically, to implement these rules, it has to be seen whether
the investigation or the regulatory proceedings are adversarial or
non-adversarial. If adversarial, the wider litigation priviledge
would apply. If non-adversarial, only legal advice priviledge
would be applied. The Court of Appeal did, however, note that the
scope of the legal advice is not clear cut as might be expected.
Comparative Analogies:
The effect of such a case in India will change the outlook toward
legal advice priviledge.
(i) The companies
will have to establish well in advance who constitutes the client.
When the company is the client it cannot be assumed that all the
employees are treated as clients for the purpose of legal advice
priviledge. This has to be defined early in the process so that
those handling the investigation know the scope of the protection
from disclosure.
(ii) It will be
appropriate to consider internal processes for the gathering of
information and creation of preparatory documents for those
investigations. The documents produced either by the employees,
ex-employees or independent third parties, whether communicated to
the lawyer or not, may not be protected and may have to be
disclosed in subsequent litigation.
(iii) Safeguards have to
be placed by ensuring that in-house and external lawyers prepare
all the notes and documents in the context of the inquiry. But it
has to be shown that dominant purpose of preparing the material
was to obtain legal advice.
(iv) In general, the companies have to be cautious in
producing documents or passing relevant information internally
without the approval of the lawyer.
Conclusion:
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 defence, or to the enforcement of his rights,
and no man could safely come into a Court, either to obtain
redress, or to defend himself.
The rigid enforcement of this rule occasionally operates to the
exclusion of truth; but if any law reformer feels inclined to
condemn the rule on this ground, he will do well to reflect on the
eloquent language of the late Knight Bruce, LJ, who observed[16],
"Truth, like all other good things, may be loved unwisely, - may
be pursued too keenly, - may cost too much. And surely the
meanness and the mischief of prying into the man’s confidential
consultation with his legal advisers, the general evil of infusing
reverse and dissimulation, uneasiness, suspicion and fear, into
those communication which must take place, and which, unless in
the condition of perfect security, must take place uselessly or
worse, are too great a price to pay for the truth itself."
*********************************************
[1] C.L. Anand, General Principles of
Legal Ethics, pg. 39
[2] Greenough v. Gaskell (1833)1 Myl.
& K. 98 as per Brougham L.C.
[3] Section 91 of the Code of
Criminal Procedure states, "Summons to produce document or
other thing.
1. When any Court or any officer in charge of a police
station considers that the production of any document or other
thing is necessary or desirable for the purpose of any
investigation, inquiry, trial or other proceeding under this Code
by or before such Court or office , such Court may issue a
summons, or such officer a written order, to the person in whose
possession or power such document or thing is believed to be,
requiring him to attend and produce it, or to produce it at the
time and place stated in the summons or order.
2. Any person required under this Section merely to
produce a document or other thing shall be deemed to have complied
with the requisition, if he causes such document or thing to be
produced instead of attending personally to produce the same.
3. Nothing in this section shall be deemed a) to affect
Sections 123 and 124 of the Indian Evidence Act (1 of 1872) or the
Bankers’ Book Evidence Act (13 of 1891), or b) to apply to a
letter, postcard, telegram or other documents or any parcel or
thing in the custody of the Postal or telegraph authority.
[4] Section 162 of the Indian
Evidence Act states, "A witness summoned to produce a document
shall, if it is in his possession or power, bring it to Court,
notwithstanding any objection which there may be to its production
or to its admissibility. The validity of any such objection shall
be decided by the Court. The Court, if it sees fit, may inspect
the document, unless it refers to matters of State, or take other
evidence to enable it to determine on its admissibility. If for
such purpose it is necessary to cause any document to be
translated, the Court may, if it thinks fit, direct translator to
keep the contents secret, unless the document is to be given in
evidence: and, if the interpreter disobeys such direction, he
shall be held to have committed an offence under Section 166 of
the Indian Penal Code."
[5] Ganga Ram v. Habib Ullah
(1935)58 All 364
[6] Kalikumar Pal v. Rajkumar Pal
(1931)58 Cal 1379
[7] Wallace v. Jefferson
2B 452
[8] Smith v. Duniell
44LJCh 189
[9] O’Rourke v. Darbishire
(1920) AC 581
[10] Calcraft v. Guest
(1898)1 QB 759
[11] Munchershav Bezanji v. The
new Dhurumsey S. & W. Company (188004 Bom 576
[12] D. Veeraseharan v. State of
Tamil Nadu 1992 Cr. L.J. 2168 (Mad)
[13] Gurunanak Provisions Stores
v. Dalhonumal Savanmal AIR 1994 Guj 31
[14] Jones v. Great Central
Railway 1910 AC 4
[15] [2003] EWCA Civ 474
[16] Pearse v. Pearse 1846, 16
LJCh 153
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"Priviledged
Legal Communications"
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