Professional communications
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.
The position of law in India on privileged professional communications between clients and legal advisors are dealt under sections 126 to 129 of the Indian Evidence Act, 1872.
Section – 126. Professional Communication
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:
Providedthat nothing in this section shall protect from disclosure –
(1) Any such communication made in furtherance of any 87[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, 88[pleader], attorney or vakil was or was not directed to such fact by or on behalf on his client.
Explanation –The obligation stated in this section continues after the employment has ceased
Illustrations
(a) A, a client says to B, an attorney-“I have committed forgery and I wish you to defend me”.
As the defense of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to, B, an attorney-“I wish to obtain possession of [property by the use] of forged deed on which I request you to sue”.
This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, ” to defend him. In the course of the proceedings B observes that an entry has been made in A’s account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
A Lawyer-Client relationship is quite clearly accepted as a fiduciary relationship. Fiduciary relationship in law is ordinarily a confidential relationship; one which is founded on the trust and confidence reposed by one person in the integrity and fidelity of the other and likewise it precludes the idea of profit or advantage resulting from dealings by a person on whom the fiduciary obligation is reposed.
In the case of Maneka Gandhi v. Rani Jethmalani, the Court observed that everyone has the right to a fair trial, and for obtaining such right one might need to seek help from an attorney.
Section 126 has been enacted for the protection of the clients, but not for the legal practitioners. The basis for the protection is founded on the impossibility of conducting the legal business without the professional assistance and on the necessity in order to render that assistance effectual, of securing full and unreserved intercourse between the legal practitioners and their clients. A client would be inclined to make free and frank disclosure of every information to his advocate only when there is a guarantee to him that what all he passes on to the advocate would not be divulged. Section 126 is designed to lend that kind of guarantee by prohibiting all such communications from being given in evidence
The privilege applies to all communications oral or documentary made in course of and for the purpose of employment as legal adviser. The letters written by the client to the advocate or by the advocate to the client are protected under Section 126. However, a letter written by accused/party to another accused/party do not come within the purview of the Section 126, and therefore are not protected. Not only the communications made by the client to the legal practitioner, even things observed by an advocate are protected.
The words ‘at any time’ in Section 126 indicate that the legal adviser is not to disclose the communication even when the relation is ended over even after the client’s death. According to explanation appended to Section 126, the privilege given under Section 126 continues even after cessation of the employment.
It means if a communication document is once privileged it is always privileged. The fact that it was inquired about in another case will not destroy the privilege.
The protection of the Section 126 will not extend to any communications made in furtherance of illegal purpose in view of proviso I, or to any fact showing that a crime or fraud has been committed since the commencement of the employment, in view of proviso 2. If a client and his lawyer cooperate in effecting a crime the lawyer ceases to be a counsellor and becomes a criminal along with his client and there would be no privilege. The existence of an illegal purpose would prevent any privilege attaching to any communication. Illustration (b) exemplifies this
Section – 127. Section 126 to apply to interpreters etc.
The provision of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.
Commentary
Section 127 of the Evidence Act as per which the ban against disclosure is extended to clerks and servants of the lawyer. The clerk of a lawyer, in the professional sphere, has to maintain confidence regarding matters conveyed to him, if it relates to communication between the counsel and the client. If a notice, or a letter or even a pleading is dictated to the clerk by a lawyer, it does not, in practical sense go beyond the lawyer’s professional range. The fact that the clerk, as a different human being, comes to know of the contents of the notice cannot make it publication to a third person
Section – 128. Privilege not waived by volunteering evidence
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, 88[ 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 or matters which, but for such question, he would not be at liberty to disclose
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. Confidential communications with legal advisers
No one shall be compelled to disclose to the Court any confidential communication which has take place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be complete to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
Under Section 129 of the Evidence Act, that in order to claim privilege under Sections 126 and 129 of the Evidence Act, it is incumbent upon the person claiming the privilege to show that the privilege is claimed in respect of a professional communication., it is necessary for the applicant to plead and establish before the court what is relationship between the applicant and its internal legal advisers i.e have professional qualification to give legal advice. 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”)
No comment