PRIVILEGED COMMUNICATION BETWEEN ADVOCATE AND CLIENT
Law of privileged communication between client and advocate has evolved over time. A client can approach an advocate and secure legal help only when he/she is sure that information and document shared by him will be treated confidentially.
PROVISIONS UNDER EVIDENC ACT
Section 126 of the Evidence Act, 1872 provides that a barrister, attorney, pleader or vakil will not disclose any communication or document received from client or advice tendered by such barrister, attorney, pleader or vakil to client in course of employment.
There are certain exceptions to this provision also. Section 126 does not protect from disclosure of any communication for furtherance of illegal purpose. Section 126 also does not protect from disclosure commission of fraud or crime since commencement of employment.
Protection under Section 126 is available even after termination of client-attorney relationship. But the client is competent to waive privilege expressly or impliedly and thereafter privileged communication will not remain protected under Section 126.
Protection to privileged communication can be better appreciated through some examples. A client says to an advocate that he had committed forgery and wants to be defended. Such communication will be protected under Section 126. A client says to an advocate that he wants to obtain possession of property on the basis of forged deed for which he wants to engage the advocate. Such communication will not be protected under Section 126. A client is charged with embezzlement and engages an advocate. An advocate notes that an entry has been made in account book which was not there when he has been engaged. Such document will not be protected under Section 126.
Section 127 extends protection under Section 126 to interpreters, clerks and servants of barristers, pleaders, attorneys and vakils.
Section 128 provides that a party to a suit will be deemed to have consented to disclosure if such party summons barrister, attorney, pleader or vakil as witness and examines about privileged communication.
Section 129 provides that no one will be compelled to disclose confidential information between client and legal professionals unless he offers himself as witness in which case he may be compelled to disclose such communication which may explain evidence, which has been already tendered.
PROVISIONS UNDER BAR COUNCIL OF INDIA RULES
Rule 17 of Standards of Professional Conduct and Etiquette (Part VI, Chapter II of Bar Council of India Rules) provides that no advocate will commit a direct or indirect breach of obligations under Section 126 of the Evidence Act, 1872.
In Memon Hajee haroon Mohomed Vs Abdul Karim (1878 3 Bom91) it was held that only such communication under Section 126 is protected which is confidential in nature. No communication is protected under Section 126 which was disclosed before creation of attorney -client relationship.
In Karamjit Singh Vs State AOR 2010 NOC (P & H) it was held that disclosure of privileged communication cannot be asked for under Right to Information Act.
STATUS OF IN HOUSE COUNSELS
In-house counsels do not enjoy same privileges as that of practicing advocates. Protection under Section 126 of Evidence Act is available to only such advocates who are enrolled with Bar Council of India. In-house counsels are generally full-time employees of organizations wherein they work, as such they are not eligible for protection under Section 126.
The Supreme Court of India in Satish Kumar Sharma Vs Bar Council of Himachal Pradesh AIR (2001) SC 509 held that if an employee is not working as an advocate on behalf of his client, he ceases to be an advocate. As such communication between in-house counsel and clients are not held to be protected under Section 126 of Evidence Act.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.