Attorney Client Privilege or Lawyer Client Privilege is the name given to the
Common Law concept of Legal Professional Privilege in the Law field.
Attorney-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.
The Attorney Client Privilege is one of the oldest
privileges for confidential communications. The Indian Judiciary System and
Indian Court has stated that by assuring confidentiality, the privilege
encourages clients to make full and frank
disclosures to their attorneys, who
are then better able to provide candid advice and effective representation.
Privileged Communication refers to the confidential conversations or
interactions between two parties who are in a legally recognized protected
relationship. The information cannot be leaked to any third party, not even in
the Court. Law can never force an individual or a corporation to disclose the
contents of privileged communications.
- The husband and 'B', the wife are undergoing a rough patch in
their matrimonial life.
- decides to transfer all his property to C via his will and only his
lawyer knows about this. If B ever asks A's lawyer to disclose it, the lawyer
can't tell as it is a privileged communication.
- He can tell only if A gives consent to do so or A himself discloses to a
The main aim and objective of introducing and implementing the very well concept
of Attorney client privilege under Indian Evidence Act 1872, is to understand
the concept of attorney client privilege in India. At the same time its main aim
is to study how this rule preserves the confidentiality of communication between
lawyer and the client.
The attorney client privilege is a crown jewel of the legal profession.
According to Black law dictionary, attorney client relationship refers to the
disclosure of potential sensitive information from clients to their attorney and
law requires that an attorney does not reveal or disclose such information or
communication between them to any third party. A sound system of administration
of justice should contain three ingredients such as, a well-planned body of law
based on the concept of social justice, a judicial hierarchy which is learned in
law and inspired by the high principles of professional conduct and a suitable
generation for ensuring fair trial.
A privileged professional communication
refers to the protection awarded between the legal advisor and the client. Legal
privilege or attorney client privilege is essentially referring to the rights
which are available to the client for the protection of their interest.
A privileged professional communication is a protection awarded to a
communication between the legal adviser and the client. Professional
communications and confidential communications with the legal advisors have been
accorded protection under The Indian Evidence Act, 1872. If the privilege did
not exist at all, everyone would be thrown upon his own legal resources.
Deprived of all professional assistance, a man would not venture to consult any
skilled person, or would only dare to tell his counsel half his case. It ensures
full, frank and complete disclosure of information or communication between the
client and lawyers without any fear of disclosure or incrimination. The main
intension behind this concept is that people or client must speak candidly or
everything to their lawyers so that their interest is completely represented to
The principle of attorney client is not a new concept. The origin of this
concept can be traced all the way back to the Roman Republic and its use was
firmly established in English law as the reign of Elizabeth I in the 16th
century. The doctrine of client confidentiality privilege became the integral
part of the UK common law and it is accepted whole around the world.
Non-attorneys such as accountants, business consultants and other advisors do
not come into the scope of this privilege. In this article I will discuss the
Indian law the way it perceives attorney-client privilege.
Attorney client privilege in India
In India law on attorney client privilege is codified under the Indian Evidence
Act, 1872 and it has been developed on the basis of the same lines as that of
the UK common law. The Indian Evidence Act, 1872 provides protection to the
professional communication and confidential communication of a client with their
legal advisors. Sir James Fit- James prepared its draft and it was based on the
English law of evidence.
Even after independence in 1947, English judgements remained persuasive
authority and the courts in India also look into the English decision in matter
concerning to the interpretation of Evidence Act. The law in India relating to
the privilege communication is very much familiar to the English law and common
law lawyers. In India, the benefit of the privilege communication is enumerated
under Section 126 to Section 129 of the Indian Evidence Act, 1872 and provides
relationship between the client and attorney or advocate.
The attorney or
advocate is legally not permitted to disclose any communication or document
related to the client without clients express consent. At the same time, a
client is also not permitted to disclose to court any confidential information
with his advocate unless he offers himself as the witness.
Section 126 and Section 128 deals with the circumstances under which the legal
advisors or attorney can give evidence of such professional communication,
however, Section 127 provides that interpreters, clerks or servants of the legal
advisors are restrained in the same manner. Section 129 enumerates the
conditions when legal advisors or attorney is required to disclose the
confidential information that has been taken place between him and client.
In India, as we know that Sections 126 to 129 of the Indian Evidence Act, 1872
deals with privileged communication that is attached to professional
communication between a legal adviser and the client.
of the Act provides the scope of privilege attached to professional
communications in an attorney-client 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 latter's employment with the client.
The section also provides certain exceptional grounds on which such privilege
shall stand denied, being in furtherance of any illegal purpose or facts coming
to the awareness of the attorney showing that either crime or fraud has been
committed since the commencement of the attorney's employment on the concerned
matter. 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
Section 127 extends the privilege provided under section 126 to the
interpreters, clerks and servants of the legal adviser.
Section 128 continues to bind the legal adviser from disclosing any information
covered under sec 126 unless the client calls the legal adviser as a witness and
questions him on the same.
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 advisor, unless he offers himself as a witness.
To claim privilege under section 126 of the Act, a communication by a party to
his pleader must be of a confidential nature. Also, there is no privilege to
communications made before the creation of a relationship of a pleader and
client. In India any person who seeks an advice from a practicing advocate,
registered under the Advocates Act, would have the benefit of the Attorney
Client Privilege and his communication would be protected under Section 126 of
the Act. This section would also extend to the Employees of the Advocate / Law
Firm which could include Accountants, Paralegals, and such other employees.
- Memon Hajee Haroon Mohomed v. Abdul Karim
- Kalikumar Pal v. Rajkumar Pal
The Client's Privilege
Generally, the Attorney Client Privilege applies when:
- An actual or potential client communicates with a lawyer regarding legal advice.
- The lawyer is acting in a professional capacity.
- The client intended the communications to be private and acted accordingly.
- Lawyers may not reveal oral or written communications with clients that clients
reasonably expect to remain private. A lawyer who has received a client's
confidences cannot repeat them to anyone outside the legal team without the
client's consent. In that sense, the privilege is the client's, not the lawyer's
the client can decide to forfeit (or waive) the privilege, but the lawyer
- The privilege generally stays in effect even after the attorney-client
relationship ends, and even after the client dies. In other words, the lawyer
can never divulge the client's secrets without the client's permission, unless
some kind of exception applies.
Comparison: The Duty of Confidentiality
The attorney-client privilege is, strictly speaking, a rule of evidence. It
prevents lawyers from testifying about, and from being forced to testify about,
their clients' statements. Independent of that privilege, lawyers also owe their
clients a duty of confidentiality. The duty of confidentiality prevents lawyers
from even informally discussing information related to their clients' cases with
others. They must keep private almost all information related to representation
of the client, even if that information didn't come from the client.
Lawyer-client communications are covered by the attorney-client privilege only
if the circumstances lend themselves to confidentiality. For example, clients
who speak to their lawyers about pending lawsuits in private, with no one else
present, can reasonably expect secrecy. If someone were to surreptitiously
record the conversation, that recording would probably be inadmissible in court.
But a client who speaks to a lawyer in public wouldn't be able to prevent
someone who overheard the conversation from testifying about it. Similarly, a
client can forfeit the attorney-client privilege by repeating a conversation
with an attorney to someone else, or by having a third person present during a
conversation with the lawyer. No matter who hears or learns about a
communication, however, the lawyer typically remains obligated not to repeat it.
Professional communication between a lawyer and a client
It is a statutory obligation under Section 126 of the Indian Evidence Act for an
advocate to not disclose without the consent of the client any:
- Communication to him by the client or vice versa
- Contents or Conditions of a document
- The advice given to the client, which was obtained or given in the
course and for the 'purpose of such employment'.
This phrase means that no privilege attaches to communication to an attorney
consulted as a friend. This obligation continues even after employment has
ceased. This encapsulates the rule of once privileged always privileged
The privilege under Section 126 is subject to certain exceptions i.e. under the
following conditions communication can be disclosed:
- When the communication was made in furtherance of an illegal purpose
- When the attorney gets to know that a crime or fraud has been committed
since employment began
- When the client gives consent
- When the information falls into the hands of a third party
- When a lawyer sues the client for professional purpose.
Section 127 of the Evidence Act states that Section 126 applies to:
- Clerks or servants of barristers
In the case of Court in its own motion vs. State
, Delhi High Court answered the
question, whether a child victim should be permitted to waive the privilege of
the counsellor? Court held that it can be done if the child does it knowingly
and voluntarily and waiver is in the interest of the child provided the reasons
for a waiver should be recorded in writing in the order.
In the case of Karamjit Singh v. State
, the Court held that one cannot ask for
disclosure of any professional communication and documents of attorney and
client under the Right to Information.
In the case of Board Of Directors, Y.M.C.A. and v. R.H. Niblett
, the Court
observed that in a defamation case where the evidence in question is proved to
be privileged then the burden to prove not just normal malice but express malice
lies on the plaintiff. The Court stated that if the occasion is privileged then
the publication by a person 'exercising the privilege to third persons' if
it is reasonable and in the ordinary course of business, where communication
wasn't possible except in the presence of uninterested people, it is
protected. The privilege can't be destroyed merely because third-persons
(clerks, typists or copyists, etc.) do not have a legitimate interest in the
Privilege cannot be waived by voluntary evidence
Section 128 states that if the client himself presents some evidence regarding
privileged communication, it doesn't amount to a waiver of privilege.
Summoning the lawyer as a witness by the client doesn't amount to consent to
disclose but when the client himself asks questions pertaining to the
confidential communication then it amounts to an implied waiver of privilege.
Confidential communications with legal advisers
This section states that no one can be compelled to disclose privileged
communication between a client and an attorney. If a client offers to be a
witness then the Court can extract from him any communication as it deems
necessary. Section 129 prohibits the client from disclosing, unlike Section 126
which prohibits a lawyer. It lifts the restrictions imposed under Section126
partially; it acts as a counterpart of Section126 of the Evidence Act.
Court held in the case of P R Ramakrishnan v. Subbaramma Sastriga
l that as per
Section129 of the Evidence Act both the clients as well as the attorney aren't
under any obligation to spell the privilege communication to any third person.
Stands of Bar Council of India
The Bar Council of India Rules (BCIR) stipulates for all advocates (legal
advisers) certain standards of professional conduct and etiquette. Part VI,
Chapter II, Section II, Rule 17 of BCIR stipulates that:
An advocate shall not,
directly or indirectly, commit a breach of the obligations imposed by Section
126 of the Indian Evidence Act thus reiterating the spirit of Attorney Client
Privilege, breach of which will also lead to violation of the Bar Council Rules.
Moreover, laws like Rule 7 and 15 of the BCI Rules on Professional Standards for
attorneys and Rule 4.14 and 4.17 of The Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002 for medical practitioners bars
the disclosure of privileged communication. Violation of any of these laws is an
automatic violation of the right to privacy under Article 21 of the Indian
Right to privacy and Privileged Communication
Article 21 of the Constitution of India states, No person shall be deprived
of his life or personal liberty except according to the procedure established by
law¯, it has an encyclopedic ambit. It covers all aspects of life, one of
which is Privacy. Right to privacy isn't expressly written in the Indian
Constitution but overtime judicial proceedings have shown that it comes under
the ambit of Article 21.
The law safeguards the right to privacy by protecting from the disclosure of
privileged communication. It takes away the evidentiary value of confidential
Section 122 of the Indian Evidence Act interdicts married couples from
disclosing any confidential communication which happens during the marriage.
Similarly, sections 126 to 129 of the Evidence Act deal with attorney-client
privilege. The concept of privileged communication strengthens the fundamental
right to privacy.
In the case of Vishal Kaushik v. Family Court
, the Court held that if the
conversation between two spouses is recorded by one of the spouses without the
knowledge of the other spouse, that evidence will not be admissible in the
Court. In fact, this act will amount to a breach of privacy under Article 21 of
the Indian Constitution and the spouse who has recorded will be held liable.
Critical analysis of Attorney Client Privilege under Indian Evidence Act
Attorney client relationship is established as legal doctrine which protects the
confidential communication between the client and their advocate, although its
application is not absolute. There are some grey areas in Section 126 of the
The Scope of Section 126 is limited only to the barristers or attorney; it does
not confer privileges to the in house lawyers. In house lawyers may not practise
as advocates or attorney during the period of their employment and they clearly
fall outside the ambit of the Section 126 of the Act.
Thus, in India,
communications between clients and in-house lawyers would generally have to be
tested whether the in-house counsel is a full time salaried employee as
contemplated under Part VI, Chapter II, Section VII, Rule 49 of BCIR. Further,
distinction may have to be made whether the advice sought is in legal or
The Supreme Court in Satish Kumar Sharma v. Bar Council of Himachal case
provided that 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 a employee of the government or
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.
Also, patent agents are not getting privilege under Section 126 of the Act.
In Municipal Corporation of Greater Bombay v. Vijay Metal Works the court
provided that the salaried employees who advices their employers on legal
matters would get the same protection as the lawyers or advocates under Section
126 and Section 129 of the Indian Evidence Act provided that the communication
made between them is not made in furtherance of any illegal purpose.
Although, in the Azko Nobel judgement, the ECJ appears to have taken a contrary
view. Section 129 of the Act provides that legal professional advisors may not
include patent agent and hence the provision restricts privilege to the clients
only. Another major limitation of Section 126 of the Act is that the
communication or information between the third parties or client and between the
lawyers and third parties such as technical experts or expert witnesses is
protected under Section 126 of the Indian Evidence Act, 1872. There should be a
distinction between the legal advice privilege and litigation privilege.
In India under the Evidence Act, the communication made for the purpose of
obtaining the advice from the lawyer is not protected while only such
communication is privileged which occur subsequent to the decision to commence
litigation. Under RTI Act, an attorney or advocate cannot hold the personal
information, communication or document ahead or such communication is not
entitled to be disclosed. In Karamjit Singh vs. State
it was held that any
information or communication given by client is not entitled for access.
The rule relating to the attorney client relationship under Indian Evidence Act
is not adequate. It may sometime happen this provision protect the criminals or
the offenders. It is said that that once a privilege is always a privilege,
it means that once a communication or information made by a client to his
attorney during the course of his employment is always protected even when such
employment comes to an end. However, Section 126 plays a major role in various
cases such as rape, murder, crime related to POCSO Act etc.
For instance, if a person has committed an offence of rape, and during the trial
period it is his responsibility to provide all the necessary information or
communication or documents to his advocate or attorney regarding such crime, in
these circumstances his advocate shall not discloses his entire client's
secret or personal information to anyone or to the Court.
If an attorney does not keep secret or discloses the aforesaid communication to
the court or police, it would be against his professional ethics. Hence, Section
126 provides privilege to such criminals who may be punished under Indian Penal
Code of India but are protected under attorney client privilege under the
Evidence Act. Section 126 provides privilege only to the client not to the legal
advisors or attorneys and only client can waive it.
It is also true that if privilege is not granted to the professional
communication then no one will come to the lawyers. But we can see that there a
big loophole in this rule such as in one hand it protects the clients secret
while on the other hand it may protects criminals.
Scope of Section 126 of the Evidence Act
Section 126 of the Indian Evidence Act 1872, provides the scope of the privilege
attached to the attorney client relationship. It provides restriction on the
barrister, attorney, pleader or vakil to disclose communications made by his
client or advice given by him in the course of his employment except if there is
an illegal purpose or showing a crime or fraud after commencement of his
In Memon Hajee Haroon Mohomed v. Abdul Karim case
, it was provided that in order
to claim privilege under Section 126 of the Indian Evidence Act, 1872 a
communication made by the party to their advocate must be confidential in
nature. Also, no privilege will be given to such communication which is made
before the creation of attorney client relationship.
In India any person who seek advice from the advocate or attorney registered
under the Advocate Act, would have the benefit of the attorney client privilege
and such communication is protected under Section 126 of the Indian Evidence
Act, 1872. The scope of this section also extends to the employees of the
advocate or law firm which also includes accountants, paralegals and other such
This code of conduct is also applicable to the advocates or legal advisors which
are found in the Bar Council of India Rules Part VI, Chapter II, Section II,
Rule 17 provides that advocate shall not directly or indirectly commit a breach
of obligation imposed under Section 126 of the Indian Evidence Act, 1872, thus
protecting the spirit of attorney client relationship and breach of same would
lead to the violation of the Bar Council Rules of India.
In order to determine the scope of attorney client privilege under Section 126
of the act, it is very important to treat an attorney's position separate from
that of the client. The level of protection that should be provided to a
communication depends on whether the information or document is sought to
extract from an advocate or from his client. Section 126 provides protection
against disclosure of any communication by an advocate.
However, there are some exceptions to this rule, such as this Section does not
provide protection when any communication is made in furtherance of any illegal
purpose or any fact which is observed in the course of employment showing that
any crime or fraud has been committed during the commencement of employment. The
communication made to an advocate must be made confidentially in order to
maintain the attorney client relationship.
The privilege under Section 126 of the Act also extends even after the attorneys
or advocate engagement has comes to an end however, it does not provide
protection to the communication or advice received after the end of the
employment. This rule is also extends to the interpreters or agents of the
attorneys who are under the same prohibition and they are also entitled to the
same immunity as the advocate engaged in the matter. However, such privileged
communication or documents can be disclosed by the advocate only when an express
consent is provided by the client.
Also, client can disclose such document or information when he voluntary give
evidence as a witness to Court, which according to the Courts opinion is
necessary to explain the evidence that the client has already given to an
attorney but for no other purposes. Section 23 of the Indian Evidence Act, 1872
provides that in civil case no such admission is considered as relevant which is
made upon an express condition that evidence of it is not to be given or under
circumstances when the court can infer that the parties agreed together that
evidence of it should not be given.
This provision is explained as nothing in this section shall be taken to exempt
any attorney or advocate or vakil from giving evidence in any matter of which he
may be compelled to give under Section 126 of the Indian Evidence Act, 1872.
Attorney client relationship in India is limited to the information,
communication, documents or advice shared between client and advocates and their
agents, and provision is made for the communication or documents made by the
parties or their attorneys to the third party in case of pending or contemplated
litigation. Neither the advocate nor the client is under obligation to spell it
to some other third party.
Various legislations oblige the parties of a protected relationship
(attorney-client, doctor-patient, husband-wife) to adhere to the rule of
privileged communication. The foundation of this is to guard the trust that a
client re-poses in an attorney, patient in a doctor and spouses in each other.
However, the privilege is not absolute in nature, it is subjected to certain
exceptions. The law also provides for punishment in case of its violation.
very evident that attorney client relationship is considered as a privilege
document is very vital for the effective disposal of the dispute. A lawyer or
attorney is under a moral well as the statutory obligation to respect the
confidence reposed in him and not to disclose his clients personal information,
communication or documents to anyone in the course or purpose of the employment.
If such communication would not be protected, then no one will consult an
advocate or attorney for his defence or to the enforcement of his rights and
hence no man would come to court either to redress or to defend himself.
The rule relating to the attorney client relationship in India is almost more
than a century old rule but still it is very inadequate to provide a level of
protection that is ordinarily be expected in this modern relationship with the
attorney. There are many limitations and drawbacks of this rule such as the
wordings related to the in-house lawyers should be made clear and they should be
covered under the ambit of this rule. Also, there is complete absence of
protection to the communication made to any third party. This rule is considered
as very rigid in nature and it may occasionally operate to the exclusion of the
Written By: Bhaswat Prakash
, Student at Ajeenkya DY Patil University,