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 ("the Act"). 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.  We will discuss this topic from the perspective of India and few other countries in the world.  In this article we will discuss the Indian law the way it perceives attorney-client privilege.

Privileged Communications

In India, Sections 126 to 129 of the Act deal with privileged communication that is attached to professional communication between a legal adviser and the client.

Section 126 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 client.

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. (Memon Hajee Haroon Mohomed v. Abdul Karim [1878] 3 Bom. 91). Also, there is no privilege to communications made before the creation of a relationship of a pleader and client. (Kalikumar Pal v. RajkumarPal  1931 (58) Cal 1379, Para 5)

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.

Bar Council Of India Rules

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.

Position Of An In-House Counsel

The Supreme Court in Satish Kumar Sharma v. Bar Council of Himachal Pradesh (AIR 2001 SC 509) held "If a full-time employee is not pleading on behalf of his employer, or if terms of employment are such that he does not have to act or plead but is required to do other kinds of functions, then he ceases to be an advocate. The latter is then a mere employee of the government or the body corporate".

The judgment also quotes Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules, stating that 'an advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice 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 practice as an advocate so long as he continues in such employment. An advocate cannot be a full-time salaried employee. The only exception is if the person is a Law Officer of the Central Government of a State or of any public corporation entitled to be enrolled in the Bar.'

In Municipal Corporation of Greater Bombay v. Vijay Metal Works (AIR 1982 Bom 6) the court held that "a salaried employee who advises his employer on all legal questions and also other legal matters would get the same protection as others, viz., barrister, attorney, pleader or vakil, under Ss.126 and 129, and, therefore, any communication made in confidence to him by his employer seeking his legal advice or by him to his employer giving legal advice should get the protections of Ss.126 and 129."

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 executive capacity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.