Privileges and Professional Secrecy in attorney-client relationship
Purbasha Panda
(Independent Corporate Counsel)
Introduction
The attorney-client relationship stands as the bedrock of the Indian legal system. The principle of attorney-client privilege is rooted in the principle of confidentiality, particularly to foster an environment where clients can disclose all relevant information to their legal advisors without any fear of exposure. This confidentiality is paramount, as it enables lawyers to provide the most effective representation, rooted in a comprehensive understanding of the client’s circumstances. However, the practical application of this privilege often navigates a balance between absolute secrecy and the overarching demands of justice, particularly when issues of public interest or criminality are involved.
This article delves into the intricacies of the attorney-client privilege in India and explores the legal framework in relation to the same. Further, it also deals with the manner of protection of data exchanged between the attorney and the client.
Legal Framework in relation to attorney-client privilege in India
Framework under the Bharatiya Sakshya Adhiniyam, 2023
Section 132 and Section 134 of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) deals with scope and limitations of the attorney-client privilege in India. These provisions consolidate Section 126 to Section 129 of the Indian Evidence Act, 1872 which had essentially codified the common law principles pertaining to attorney-client privileges. Section 132 of the BSA provides that an advocate should not be permitted, unless with the express consent of his client, to disclose any communication made to him in the course of his service as an advocate or state the contents of any document with which he has become acquainted with, in the course of his professional service.
- Exceptions to attorney client privilege
The aforementioned privilege is subject to certain limitations set out below:
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- Illegal purpose exception: The privilege enshrined under Section 132 of the BSA would not be applicable in case of any communication made in furtherance of any illegal purpose.
- Fraud exception: The privilege enshrined under Section 132 of the BSA would not be applicable when any fact is observed by any advocate, in the course of his service as such, in connection with any crime or fraud that has been committed since the commencement of his service. It is immaterial whether the attention of such advocate, was or was not directed to such fact by or on behalf of his client.
- Illegal purpose exception
Under the Indian law, there isn’t a lot of jurisprudence on the treatment of the illegal purpose exception to the rule of confidentiality arising out of the attorney-client relationship. One of the illustrations to Section 134 provides some clarity as to what circumstances may fall under such an exception. It illustratively provides an example that, A, a client, says to B, an advocate that he has committed forgery, and that he wishes B to defend him. As the defence of a man known to be guilty, is not a criminal purpose, this communication is protected from disclosure. Further, a client, says to B, an advocate that he wishes to obtain possession of property by the use of a forged deed on which he requests the advocate to sue. This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
- Fraud exception
Under the Indian law, there isn’t a lot of jurisprudence on the treatment of the fraud exception to the rule of confidentiality arising out of the attorney-client relationship. One of the illustrations to Section 134 provides clarity as to what circumstances may fall under such an exception. The said illustration mentions that if A, being charged with embezzlement, retains B, an advocate, to defend him, then, 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 professional service, then, this being a fact observed by B in the course of his service, showing that a fraud has been committed since the commencement of the proceedings, is not protected from disclosure.
- Attorney-client privilege and in-house counsels under BSA
Section 132 also clarifies that this provision applies to interpreters, clerks, and employees of such advocates and is applicable during the term of the relationship between the attorney and the client. Prior to this, the Supreme Court in the case Satish Kumar Sharma v. Bar Council of Himachal Pradesh, AIR 2001 SC 509 has held that if a fulltime 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 and in such case the attorney-client privilege would not be applicable. In Municipal Corporation of Greater Bombay v. Vijay Metal Works, AIR 1982 Bom 6 the Supreme 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 Section 126 and Section 129 of the Indian Evidence Act, 1872.
- Section 134 of the BSA and disclosure of confidential information before the court
Section 134 of the BSA provides that no individual can be compelled to discuss with the court any confidential information, which includes any confidential communication between the client and his legal adviser, unless he offers himself as a witness, in which case he may be compelled 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.
- Privacy and data protection of information shared under attorney-client relationship
Privacy and data protection of the information shared as a result of the attorney-client relationship is subject to the aforementioned provisions of the BSA as well as the provisions of the relevant data protection law. The practice of attorney-client privilege emphasises the nature of fiduciary relationship. Trust is established based on understood rules of confidentiality and clarity in the motivations and boundaries of any commercial transaction.
The Digital Personal Data Protection Act, 2023 (“DPDP”) under Section 2(i) provides the definition of ‘data fiduciary.’ As per this section, a ‘data fiduciary’ refers to any individual or group that, either independently or in collaboration with others, decides the objectives and methods of handling personal data. According to the DPDP, personal data may only be processed by an individual or entity for lawful purposes, with explicit consent or under specified legitimate circumstances. The term ‘data principal’ denotes the individual to whom the personal data pertains, extending to include parents or legal guardians in the case of minors, and legal guardians in the event of individuals with disabilities. Before seeking consent, the data fiduciary is obligated to provide a detailed notice outlining the processing purpose, complaint procedure, and access to the notice in English or any language specified in the eighth schedule of the constitution. This obligation persists regardless of whether consent was previously obtained before DPDP came into effect.
Conclusion
In conclusion, the privileges and professional secrecy inherent in the attorney-client relationship are fundamental to the integrity and effectiveness of the legal system. These protections ensure that clients can communicate openly and honestly with their legal representatives, fostering a relationship of trust and confidence. Upholding these privileges is crucial for safeguarding the rights of individuals and maintaining the confidentiality necessary for effective legal counsel. As the legal landscape continues to evolve, preserving the principles of attorney-client privilege and professional secrecy remains vital for the administration of justice and the protection of client interests.