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Priviledged Legal Communications

Written by: Gauri Kulkarni - Vth year law - Symbiosis Society's law college, Pune
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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.

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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