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Attorney-client communications doctrine
Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that protect
communications between an attorney and a client from disclosure.
Professional communication between a legal adviser and a client is accorded protection under the Indian
Evidence Act 1872 (the Act), the Advocates Act 1961 (the Advocates Act) and the Bar Council of India Rules
(the BCI Rules).
Sections 126 to 129 of the Act is a codification of the principles of common law on professional communications
between attorneys and clients. Any person who seeks advice from a practising advocate, registered under the
Advocates Act, would have the benefit of the attorney-client privilege and his or her communication would be
protected. Attorneys cannot, without the express consent of the client:
disclose any communication made during the course of or for the purpose of his or her employment as
such attorney, by or on behalf of his or her client;
state the contents or condition of any document with which he or she has become acquainted in the course
of and for the purpose of his or her professional employment; or
disclose any advice given by him or her to his or her client in the course and for the purpose of such
employment.
There are certain limitations to the privilege and the law does not protect the following from disclosure:
disclosures made with the client’s express consent;
any such communication made in furtherance of any illegal purpose; or
any fact observed by any attorney in the course of his or her employment, showing that any crime or fraud
has been committed since the commencement of his or her employment. The fact that the attention of the
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Further, under section 129 of the Act, no one shall be compelled to disclose to the court any confidential
communication that has taken place between him or her and his or her attorney, unless they have offered
themselves as a witness, in which case they may be compelled to disclose any communication as may appear to
the court necessary to be known in order to explain any evidence that they have given, but no other.
Communications between an attorney and client are privileged even if they contain information from third
parties. Prohibition of disclosure also extends to any interpreters, clerks or servants of the attorney. While the
attorney-client privilege continues even after the employment has ceased, there is no privilege to
communications made before the creation of an attorney-client relationship (Kalikumar Pal v Rajkumar Pal 1931
(58) Cal 1379).
The above prohibitions on disclosure of attorney-client communications are further bolstered by the provisions of
the BCI Rules enacted under the Advocates Act, which govern the conduct of advocates in India.
The BCI Rules stipulate certain standards of professional conduct and etiquette for all attorneys. These provide
that ‘An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by section 126 of
the Act’, thus reiterating the spirit of attorney-client privilege (Rule 17, Chapter II, Part VI).
Further, Rules 7 and 15 of the BCI Rules on An Advocate’s Duty Towards the Client provides as follows:
Rule 7. Not disclose the communications between client and himself: An advocate should not by any
means, directly or indirectly, disclose the communications made by his client to him. He also shall not
disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates section
126 of the Indian Evidence Act 1872.
Rule 15. An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
A breach of the above Rules would subject an advocate to disciplinary proceedings. In view of the above,
privileged communication between an attorney and a client are not admissible as evidence.
Since the law on privilege is governed by the Act, one (possibly unintended) consequence is the argument that
attorney-client communications are strictly not protected from law enforcement agencies in the course of
investigations. Having said that, any privileged material, if produced, may not be admissible as evidence in court
proceedings.
In-house and outside counsel
Describe any relevant differences in your jurisdiction between the status of private practitioners and in-
house counsel, in terms of protections for attorney-client communications.
The issue regarding the position of an in-house counsel on the question of attorney-client privilege in India is not
free from doubt. This question has been the subject matter of judicial interpretation. In this regard, the relevant
provisions of law in this regard are as under:
Section 2(a) of the Advocates Act defines advocate as an advocate entered in any roll under the
provisions of the Act.
Section 29 of the Advocates Act states that only advocates are entitled to practise the profession of law in
India, which has been judicially defined to include:
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to practise the profession of law outside court by giving legal advice as attorney and counsel at law or by
drafting or drawing legal documents or advising clients on non-contentious matters.
Rule 49 of the BCI Rules states that an advocate shall not be a full-time salaried employee of any person,
government, firm, corporation or concern, as long as he or she continues to practise and shall, on taking up any
such employment, disclose the fact to the Bar Council on whose roll his or her name appears, and shall thereupon
cease to practise as an advocate so long as he or she continues in such employment.
It is therefore often argued that an in-house lawyer (ie, one who draws a salary) cannot practise as an advocate
until such time that he or she is in full-time employment (Sushma Suri v Government of National Capital
Territory of Delhi (1999) 1 SCC 330).
The Supreme Court of India clarified this question of law in Satish Kumar Sharma v Bar Council of Himachal
Pradesh (2001) 2 SCC 365. On whether a salaried employee can be an ‘advocate’ under the Advocates Act, the
court held:
The test, therefore, is not whether such person is engaged on terms of salary or by payment of
remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In
that event the terms of engagement will not matter at all . . . If the terms of engagement are such that he
does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the
Government or the body corporate. Therefore, the Bar Council of India has understood the expression
advocate as one who is actually practicing before courts which expression would include even those who
are law officers appointed as such by the Government or body corporate.
However, the above distinction between lawyers who are engaged to act or plead as advocates and lawyers who
are employees does not materially alter the position of law in respect of attorney-client privilege. This has been
clarified by the Bombay High Court in the following cases:
In Municipal Corporation of Greater Bombay v Vijay Metal Works, AIR 1982 Bom 6, the Bombay High
Court, while considering whether privilege would extend to communications between an in-house counsel
and the client, has held that a paid or salaried employee who advises his or her employer, on all questions
of law and relating to litigation, must get the same protection of law and therefore any such
communication made in confidence by his or her employer to him or her for the purpose of seeking legal
advice or vice versa should get protection of sections 126 and 129 of the Act. The Court further
distinguished that such protection may not extend to the work undertaken by an in-house legal counsel for
his or her employer that is in another capacity (such as work of an executive nature). Communications
exchanged in any other capacity (not legal) would not be subject to legal professional privilege under
sections 126 to 129 of the Act.
In Larsen & Toubro Ltd v Prime Displays (P) Ltd [2003] 114 Comp Cas 141 (Bom), the Bombay High
Court observed that:
It is, thus, clear that, even according to the applicant, in order that an advice given by an internal legal
department of the applicant becomes entitled to protection, under Section 129, that advice must be given
by a person who is qualified, to give legal advice.
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This observation appears to indicate that where the in-house counsel would, save for his or her employment with
the concerned litigant, be otherwise qualified to give legal advice, then privilege under sections 126 and 129 of
the Act would attach itself to advice given by that in-house counsel. The Court in Larsen & Toubro, however, did
not make any finding on this issue, owing to lack of pleadings on the issue. In Larsen & Toubro, the Court also
permitted a claim of privilege in the case of certain documents, which included communications between
company and in-house counsel, but solely on the ground that the same had been created in anticipation of
litigation.
Work-product doctrine
Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that provide
protection from disclosure of tangible material created in anticipation of litigation.
All materials created (tangible or intangible) and communication exchanged between a client and attorney in
anticipation of litigation will be privileged communication (Larsen & Toubro). This includes communication for
the purpose of obtaining advice for the litigation; for obtaining or collecting evidence to be used in the litigation;
and for obtaining information that will lead to such evidence, drafts of notices, pleadings and so forth exchanged
between the attorney and the client.
Information called for by the client and provided by an employee or a third-party agent, on the request of, and for
the purpose of submission to, the attorney may also be protected (Woolley v North London Railway (1868-1869)
LR 4 CP 602).
However, communication between the employees of the client in the ordinary course of business, which may
have utility for anticipated litigation, is not protected. Accordingly, there is no protection accorded to the
following:
for statements made by an employee regarding the subject matter of certain suit proceedings that were not
to be submitted to their attorney (The Central India Spinning Weaving and Manufacturing Co Ltd v G I P
Railway Co, AIR 1927 Bom 367); and
letters written by one employee to another regarding information that could potentially become useful to
their attorney (Bipro Doss Dey v Secretary of State for India in Council (1885) ILR 11 Cal 655).
Instead of asking the [Public Prosecutor], who holds such an information in the capacity of counsel, the
petitioner is very well entitled to approach the client, ie, the State of Tamil Nadu directly for getting such
information.
In Cecilia Fernandes v State represented by the Director General of Police Goa and Anr, Criminal Miscellaneous
Application No. 9 of 2005, the Bombay High Court held that the right to consult a legal practitioner under article
22(1) of the Constitution of India could only be exercised meaningfully in confidence. Thus, a police officer,
while entitled to stay within a certain distance of an accused, cannot insist on being within hearing distance so as
to prevent an accused from instructing his or her lawyer in confidence.
Attorney-client communications
Elements
Describe the elements necessary to confer protection over attorney-client communications.
Section 126 of the Act prohibits an attorney from disclosing an attorney-client privileged communication. The
communication may be of any form and nature, verbal or documentary. It even covers facts observed by an
attorney in the course and purpose of the attorney-client relationship. The elements necessary to confer
protection are:
There must be:
communication between a client and his attorney;
documents exchanged between a client and an attorney, the contents and condition of which the
attorney should be acquainted with; or
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The above information must have been provided in the course of and for the purpose of the professional
engagement with the attorney or in anticipation of litigation, and cannot just be general information.
The communication should not be in furtherance of any illegal purpose, or such information should not
relate to the commission of any fraud or crime after the commencement of engagement with the attorney.
Whether the attention of the attorney was specifically directed by the client (or someone on behalf of the
client) to a particular fact is not relevant.
Section 129 of the Act provides protection to a client from being compelled to disclose any ‘confidential
communication’ with his or her legal professional adviser. The scope of attorney-client privilege under this
section extends to all communications, oral or written. Based on observations in case laws on this issue, it
appears that for any communication to qualify as being privileged under section 129, there are two tests that have
to be satisfied, namely:
whether the person is a professional legal adviser; and
if yes, whether the communication is confidential and whether it is in relation to any legal issue or
litigation, or in relation to legal advice sought by the client from the professional legal adviser.
To claim privilege, the communication must be of a private and confidential nature, and must have been provided
sub sigillo confessionis (ie, in confidence). Where the communication is made in the presence of third parties, the
court will examine whether the person intended it to be confidential or not. The position occupied by the third
party and whether the third party had the same interests is relevant.
In Bhagwani Choithran v Deoram, AIR 1933 Sind 47, a client made a statement to his attorney in the presence of
the client’s friends. The court held that since the friends occupied more or less the same position as the client,
and had the same interests, privilege was not destroyed; however, the court held that it could be evidence that
communication was not being made in confidence.
In Memon Hajee v Moulvi Abdul (1878) 3 Bom 91, the defendants, in the presence and within the hearing of the
plaintiff, had communicated information to their attorney who was at the relevant time also the attorney for the
plaintiff. This information was held to be not confidential in light of the conduct of the defendants, and given that
the statements were made to the attorney not exclusively in his character as attorney for the defendants but also
as attorney for the plaintiffs.
Exclusions
Describe any settings in which the protections for attorney-client communications are not recognised.
Under section 129 of the Act, no one shall be compelled to disclose any confidential communication to the court,
which has taken place between a client and his or her attorney, unless the client offers him or herself as a witness
in which case he or she may be compelled to disclose any such communication as may appear to the court
necessary to be known in order to explain any evidence that he or she has given, but no other.
Any fact observed by any attorney in the course of his or her employment, showing that any crime or fraud has
been committed since the start of his or her employment is not accorded protection under the Act. The fact that
the attention of the attorney was or was not directed to such fact by or on behalf of his or her client is not
material in this regard.
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any inquiry, trial or other proceeding. The court in Chandubhai v State, AIR 1962 Guj 290, held that the
protection against production or disclosure, however, does not extend to any original document that might have
come into the possession of an attorney from his or her client. The attorney is but the agent of the client to hold
the document and if the client is compellable to produce the document, there is no reason either on principle or
authority on which the attorney can refuse to produce the document. The document handed over to the attorney
by the client cannot be said to be privileged under section 120 of the Act unless the document contains any
communication made to the attorney by the client in the course and for the purpose of the engagement as an
attorney. The letter of which production was sought in the present case from the attorney of the accused was
obviously not a letter in respect of which any privilege could be claimed by the attorney of the accused under
section 126 of the Act.
Who holds the protection?
In your jurisdiction, do the protections for attorney-client communications belong to the client, or is
secrecy a duty incumbent on the attorney?
Section 126 of the Act prohibits an attorney from disclosing attorney-client communications, without the express
consent of the client. Therefore, the client may release the attorney from his or her obligation to maintain
secrecy. However, in the absence of express consent, the attorney has a duty to maintain secrecy. If the attorney
fails in his or her duty and discloses confidential information, that information may be held inadmissible
(Bakaulla Mollah v Debiruddi Mollah (1911-1912) 16 CWN 742 (Cal)).
Underlying facts in the communication
To what extent are the facts communicated between an attorney and a client protected, as opposed to the
attorney-client communication itself?
The facts between an attorney and a client are privileged as far as they are exchanged after the attorney’s
engagement and subject to the exceptions set out above (such as such facts not in relation to an illegal purpose,
etc).
Agents
In what circumstances do communications with agents of the attorney or agents of the client fall within the
scope of the protections for attorney-client communications?
Section 126 of the Act includes communications made to the attorney ‘on behalf of’ the client within the scope
of the protection. This will arguably extend protection to communications made by the agent of the client to the
attorney on the client’s behalf in relation to legal advice or in anticipation of legal proceedings. Section 127 of
the Act extends protection under section 126 to all interpreters and clerks or servants of the attorney.
Corporations claiming protection
Can a corporation avail itself of the protections for attorney-client communications? Who controls the
protections on behalf of the corporation?
Yes. The protection is granted for a ‘client’, the meaning of which is not restricted to individuals.
Communication between a corporation (through its agents) and external attorney in relation to legal advice or in
anticipation of litigation is considered to be privileged communication under sections 126 to 129 of the Act. Such
protection is not absolute and subject to limitations as set out in question 1.
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Communications between employees and outside counsel
Do the protections for attorney-client communications extend to communications between employees and
outside counsel?
Yes, the protection for attorney-client communications will extend to communications in relation to legal advice
or in anticipation of litigation between employees (as agents of the corporation) and outside counsel provided.
Such protection is not absolute and subject to limitations as set out in question 1.
Communications between employees and in-house counsel
Do the protections for attorney-client communications extend to communications between employees and
in-house counsel?
Yes, the protection for attorney-client communications will extend to communications in relation to legal advice
or in anticipation of litigation between employees (as agents of the corporation) and outside counsel provided.
Such protection is not absolute and subject to limitations as set out in question 1. Further, such protection may
not extend to the work undertaken by an in-house legal counsel for his or her employer that is undertaken in
another capacity (such as work of an executive nature). Communications exchanged in any other capacity (not
legal) would not be subject to legal professional privilege under sections 126 to 129 of the Act (Vijay Metal
Works).
Communications between company counsel and ex-employees
To what degree do the protections for attorney-client communications extend to communications between
counsel for the company and former employees?
Privilege under section 126 of the Act extends to attorney communication with employees (working in a client
corporation) in the course of and for the purpose of their professional employment. Section 126 specifically
states that the obligations of such persons continue after the employment has ceased.
Further, section 126 of the Act protects communication between an attorney and a client or on behalf of his or
her client. Any communication between a former employee, as an agent of the client with an attorney, can be
considered as privileged communication. Such protection is not absolute and subject to limitations as set out in
question 1.
Who may waive protection
Who may waive the protections for attorney-client communications?
The privilege accorded under sections 126 to 129 of the Act is established for the protection of the client. Hence,
such a privilege can only be waived by the client.
Actions constituting waiver
What actions constitute waiver of the protections for attorney-client communications?
Under section 126 of the Act, a client is required to expressly consent to the waiver of privilege. This need not be
in writing necessarily, and could be inferred from the facts and circumstances. Further, under section 128, if a
client calls his or her attorney as a witness and, in the course of examination, asks questions that specifically
require a disclosure of attorney-client privileged information, then such a client is understood to have waived
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Does accidental disclosure of attorney-client privileged materials waive the privilege?
Waiver of privilege under section 126 of the Act occurs only when the client expressly consents to it, or in the
case of section 128, consents to it by implication. While there is no judicial pronouncement by the courts of India
on this issue, considering any waiver must be deliberate (indicating consent), accidental disclosure may not be
considered as a waiver of privilege.
Sharing communications among employees
Can attorney-client communications be shared among employees of an entity, without waiving the
protections? How?
While confidential communications between principal and agent, even if relating to matters in a suit (or other
litigation advice or proceedings) are not privileged, attorney-client communications are privileged
correspondence. Only the client entity can waive such privilege. Therefore, sharing the attorney-client
communication among employees of a client entity does not waive protection.
Exceptions
Describe your jurisdiction’s main exceptions to the protections for attorney-client communications.
Section 126 of the Act lays down two exceptions to attorney-client privilege, namely:
communication made in the furtherance of any illegal purpose; and
any fact observed by an attorney in the course of his or her employment that shows a crime or fraud has
been committed since the start of his or her employment.
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