A client-attorney relationship is based on trust and confidence. This effectively ensures that the information provided by the client to the attorney in connection with legal advice being sought is protected from disclosure to third parties (including, in many circumstances, to the authorities). The protection available to client-attorney communication is to encourage the client to disclose all relevant information to the attorney so that effective legal advice can be obtained. It has been framed to render legal professional assistance effectual and to secure communication between the client and the legal adviser at all times.
Protection has been granted to such communication under the Indian Evidence Act, 1872. The privileges provided under law are primarily for the benefit of the client and not the legal adviser. The legal adviser is bound under law to protect the privilege unless the client expressly or impliedly waives the privilege.
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Therefore, a legal adviser, even though willing to be a witness in a proceeding, is bound not to disclose privileged communication unless the client permits the legal adviser to do so, or the client examines the legal adviser on such communication, which would mean that the client, by implication, consents to, or requires, disclosure of privileged communication. The obligation to maintain and protect confidentiality of the privileged communication is applicable to the employees of the independent legal adviser and also extends to salaried legal advisers and law officers.
Confidential communication between a legal adviser and client during the subsistence of a client-attorney relationship for the purpose of receiving legal advice is privileged at all times. The general rule is: ”Once privileged, always privileged.” Accordingly, the privilege can be asserted by the client’s successors. The privilege exists irrespective of the fact whether a dispute is contemplated or is pending.
The protection under the Evidence Act has been granted to direct communication and also communication through agents. Such protection extends to all documents generated for the purpose of rendering legal advice, letters and instructions to legal advisers, opinions from legal advisers, all working papers and drafts. In addition to such documents and communication, any communication between the client, legal adviser and a third party generated for the sole purpose of providing or receiving advice with respect to any litigation or for collecting evidence is privileged communication. However, it is not that every communication addressed by the client to the legal adviser is privileged from disclosure. Protection is granted to communication whose subject matter is confidential (that is, not known to others), which is made by the client to the attorney for legal advice.
There are certain exceptions to the privilege granted under the law to client-attorney communication. Any communication by the client to his attorney in furtherance of an illegal purpose or to any fact indicating that a crime or fraud has been committed would not get the protection otherwise available to client-attorney communication.
The Evidence Act not only prevents disclosure by the attorney of privileged communication but also gives the client the right not to disclose privileged communication. No person can be compelled to disclose to a court any confidential communication between such person and the legal adviser, subject, of course, to the above exception. However, a court has the discretion of negating this protection if the client voluntarily becomes a witness in a legal proceeding (as opposed to being “compelled” to become a witness). In such an event, if the court feels that disclosure of such confidential communication is essential for properly comprehending the evidence given by such person while acting as a witness, he can be compelled to disclose the advice or communication exchanged with the legal adviser.
Thus, it can be seen that the law seeks to strike a balance between protecting the interests of the client to maintain confidentiality of the communication with legal advisers, on the one hand, and the interest of law enforcement and public policy, on the other hand.
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This column is contributed by Meera Singh Joyce of AZB & Partners, Advocates and Solicitors.