Research project submitted on:

COMPARATIVE ANALYSIS OF PRIVILEGED COMMUNICATION

In compliance with the partial fulfilment of the marking scheme, for Semester VIII

In the subject of:

PROFESSIONAL ETHICS AND PROFESSIONAL ACCOUNTING
SYSTEM

Submitted to:
PROFESSOR AKSHAYA DESAI

Submitted by:
Prakshal Bhargatiya, A018
Fourth Year, B.A. LL.B. (Hons.)
Div. A

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 TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................3

RESEARCH METHODOLOGY....................................................................................................3

ORIGINS AND RATIONALE OF THE ATTORNEY CLIENT PRIVILEGE RULES................4

THE RULE IN THE UK, USA, CANADA AND EU....................................................................5

THE RULE IN INDIA:...................................................................................................................6

EXCEPTIONS TO THE RULE ACROSS JURISDICTIONS.....................................................12

CONCLUSION:............................................................................................................................15

BIBLIOGRAPHY..........................................................................................................................16

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INTRODUCTION

Law is considered a noble profession, and this is reflected in the predominance of lawyers in all
walks of public life in the past, be it the freedom movement, or early public service or politics.
Also, a lawyer was regarded as a family friend. 1 While according to most people this perception
of lawyers has changed in the eyes of the public, 2 there is still a need to maintain some parts of
that relationship.
One essential part of the relationship between attorney and client is that the client trusts the
attorney implicitly. This is essential for the functioning of the profession, as well as for the well-
being of the client, as he will then be able to tell his lawyer everything that the lawyer needs to
know to represent him to the best of his ability. This trust can exist through the lawyer’s moral
fiber or ethical norms and, when that isn’t sufficient, through specific legal rules. The legal rules
are often to increase the level of faith that clients have that their trust will not be breached.
This paper examines the origin of the idea of attorney-client privilege, and what purpose it
serves. It then looks at the nature of the information that is protected and exceptions to the
privilege rule. Certain specific situations are analyzed, and a normative idea on what the law
should be is also provided. While the focus of this paper is Indian law, the law in the United
Kingdom and the United States has also been analyzed as most legal rules in India are borrowed
from Anglo-saxon jurisprudence. Especially as far as the rules regarding attorney client privilege
are concerned, as they are found in the Indian Evidence Act, 1872 which was enacted in the
British era.

RESEARCH METHODOLOGY
Aims and Objectives:
The aim of this project is to understand the rationale behind creating a rule of privilege for
attorney client communications and to see its application across jurisdictions.

1
Soli J. Sorabjee, “Lawyers as Professionals”, AIR 2002 Jour 4.
2
n the United States, for example, lawyers are easily the most hated and least trusted profession. When, in 1991, a
national sample was asked to volunteer “what profession or type of worker do you trust the least,” lawyers were far
and away the most frequent response. Almost as many (23%) spontaneously volunteered lawyers as the next two
categories (car salesman, 13%; politicians, 11%) combined. Marc Galanter, “The Faces of Mistrust: The Image Of
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Lawyers In Public Opinion, Jokes, And Political Discourse”, 66 U. Cin. L. Rev. 805.

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Scope and Limitations:
This paper is limited to examining Indian law in detail. For the purposes of comparison,
especially in terms of exceptions, US law, Canadian law and UK law have been examined.

Research Questions:
1) Why is there a rule privileging communication between an attorney and his client
2) How is this rule statutorily provided for in various jurisdictions?
3) What are the various exceptions to this rule in various jurisdictions?
4) What are the trends that this rule has seen over the recent past?
The researcher has attempted to answer all these in this paper.

ORIGINS AND RATIONALE OF THE ATTORNEY CLIENT PRIVILEGE

RULES

“The situation created if there is no privilege given is one of every man being forced to defend
himself instead of hiring a lawyer, or people telling their lawyers only half the story.”3
This is the idea behind protecting this privilege, and is premised on the idea that legal business
cannot be conducted without professional help, and that professional help can only be effectively
provided with full information.4
Lord Brougham LC in Greenough v. Gaskell5 stated that subject to recognised exceptions,
communications seeking professional legal advice, whether or not in connection with pending
court proceedings, are absolutely and permanently privileged from disclosure even though, in
consequence, the communications will not be available in court proceedings in which they might
be important evidence.
It is clear from this discussion that the confidentiality of information between lawyer and client
is both a right of the lawyer as well as the duty.6 It is a right as the lawyer cannot be compelled
to

3
Greenough v. Gaskell , (1824-34) All ER(Rep) 767.
4
Jones v. Great Central Ry, 1910 AC 4.
5
Greenough v. Gaskell , (1824-34) All ER(Rep) 767.
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6
K. Gururaja Chari, Advocacy and Professional Ethics, (Allahbad: Wadhwa and Co. , 2000), at p. 143.

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give that evidence, and it is a duty as he will be prevented from divulging this confidential
information without the consent of the client in question.7
In Kishore Lal v. Chairman, Employees State Insurance Corporation,8 the Court observed that
the relationship between a doctor and his patient must be one of utmost trust and confidence, and
that the relationship is a personal relationship. In 9 order for this relationship to flourish, it is clear
that information passed from one to the other would have to remain confidential.
The attorney client privilege extends to after the termination of the relationship between the two
parties. It also entails that the attorney do all he can to ensure confidence is maintained after this
relationship is severed. For example, the lawyer should return all documents that he has that
belong to the client.10
Confidentiality to a lay person includes not only an undertaking by the lawyer that he will not
reveal this information to the public or any member thereof, but also an undertaking by the legal
system that the lawyer will not be compelled to reveal privileged information.11
There are several obvious bases for the existence of a rule preventing an attorney from divulging
information about his clients’ cases. First, this duty stems from a respect for the right to privacy,
as the information belongs to the client, and that must be maintained. Second, in purely practical
terms, a client will not want to go to a lawyer who he doesn’t believe he can trust to keep his
information confidential.

THE RULE IN THE UK, USA, CANADA AND EU:

The rules governing attorney client privilege are an essential part of common law as discussed
above. Hence, for the discussion below, the researcher has just dealt with a couple of recent
decisions that concern the subject as far as UK law is concerned.
In its judgment in the case of Southwark and Vauxhall Water Company,12 (1978) 3 QBD 315
(CA), Lord Cockburn, C.J., observed:

7
Id.
8
Kishore Lal v. Chairman, Employees State Insurance Corporation, AIR 2007 SC 1819
9
Id.
10
P. Ramanatha Aiyer, Legal and Professional Ethics: Legal Ethics, Duties and Privileges of a Lawyer, (3rdedn.,
Nagpur: Wadhwa and Co., 2003)
11
Clark D. Cunningham, “How to Explain Confidentiality”, 9 Clinical Law Review 579 (2003).
12
Southwark and Vauxhall Water Company, (1978) 3 QBD 315 (CA).

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“The relation between the client and his professional legal adviser is a confidential relation of
such a nature that to my mind the maintenance of the privilege with regard to it is essential to
the interests of justice and the well-being of society.”
The judge considered the potential benefit of disclosure in some cases but concluded that the
benefits of disclosure are outweighed by the attendant risks and therefore the disclosure is not
justified.
In the United Kingdom, legal privilege is divided into legal advice privilege and litigation
privilege. The second type is wider and covers documentation, etc. along with what is
communicated between the two. However, it only applies when there is a litigation that has taken
place.13
European Community Law recognizes the confidentiality of certain communications between
lawyer and client.14 However, as far as written documents are concerned, the privilege only
applies to them if they are made for the purpose of and in the interest of the client’s right to
defence, and that they emanate from lawyers not employed by the client. 15This is different from
the position in the other countries examined in this paper, as in those countries the fact of
employment of the lawyer is irrelevant to ascertaining whether privilege exists or not.
In the USA and Canada, these rules find definition in the rules of evidence. These rules are based
almost entirely on common law in both the United States16 and Canada.17

THE RULE IN INDIA:

In India, the legal protection for this privilege is found in s. 126 to s. 129 of the Indian Evidence
Act, 1872.18 The practical consequence of this is that when a lawyer is called as a witness against

13
Gauri Kulkarni, “Privileged Legal Communications”, Lawyers Collective, (2004) 19(3) 15.
14
Article 6, European Convention. See Ross Cranston, Legal Ethics and Professional Responsibility, (Oxford:
Clarendon Press, 1995), at p. 119
15
K. Gururaja Chari, Advocacy and Professional Ethics, (Allahbad: Wadhwa and Co. , 2000), at p. 141
16
Rule 501 of Federal Rules of Evidence states that: “Privilege . . . shall be governed by the principles of common
law as interpreted by the courts of the United States in light of reason and experience”
17
Andrew Marble, “Vital to Adversarial System or Adversary of Justice?”, sourced from www.pennjil.com/jilp/1-
1_Marble_Andrew.pdf.
18
126. Professional communications – 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 in 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
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his client, he might be obliged to relinquish his engagement in the case.19 This is also part of Rule
13 of Chapter II of Part VI of the Bar Council of India Rules.20
An explanation of the privilege provisions was provided by the Gujarat High Court in
Gurunanak Provisions Stores v. Dulhonumal Savanmal and Ors.21 The court stated that
“Neither a legal adviser nor his interpreter, clerk or even servant could be permitted to disclose
any communications made to him in the course and for the purpose of professional employment
of such legal adviser or to state the contents or condition of any documents with which any such
person has become conversant in the course and for the purpose of such employment.”
The Court explained that the provisions existed to protect the client and not the lawyer. It also
explained the rationale for the provisions, saying that they existed due to the impossibility of
conducting legal business without the professional assistance and on the necessity in order to
render that assistance effectual of securing full and unreserved communication between the
adviser and the client. The court also clarified that instructions to counsel would qualify as
privileged documents.
The court also stated the limitations that exist on the exercise of this privilege by virtue of the
wording of the substantive provision of the statute. It said that the statute only protects only such
communications as are made to the legal adviser in confidence in the course and for the purpose
of his employment. However, they were quick to clarify that the absence of litigation or the lack
of imminent litigation at the time the confidential communications are made will not constitute
an excuse for its disclosure.

employment, or to disclose any advice given by him to his client in the course and for the purpose of such
employment
:
Provided that nothing in this section shall protect from disclosure –
(1) Any such communication made in furtherance of any 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 pleader attorney or vakil was or was not directed to such fact by or on behalf or this
client.
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.
129. Confidential communications with legal advisers –No one shall be compelled to disclose to the court any
confidential communication which has taken place between him and his legal professional adviser, unless he offers
himself as a witness, in which case, he may be compelled to disclose any such communications as may appear to the
court necessary to be known in order to explain any evidence which he has given, but no others.”
19
N. Yovas v. Immanueal Jose, AIR 1996 Ker 1.
20
M. C. Sarkar et al., Sarkar’s Law of Evidence, (15th edn., S. Sarkar and anr. eds., Nagpur: Wadhwa and Company,
1999), at p. 2028.
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21
Gurunanak Provisions Stores v. Dulhonumal Savanmal and Ors., AIR 1994 Guj 31.

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The court also explained the difference between ss. 126 to 128 and s. 129, stating that the former
deals with the protection afforded to the lawyer from being called to the stand while the latter
deals with the protection afforded to the client from revealing information provided by his
lawyer to him. The former is therefore not only a prohibition on the information being taken
from the lawyer, but also entails the power of the Court to prohibit the lawyer from revealing
particular information. The same obviously doesn’t apply to the latter is the client has the right to
disclose any information. The legal adviser is obliged to claim the privilege unless the client has
given consent. Failure to do this may amount to professional misconduct.
Sections 126 and 129 of the Evidence Act protect the communications between a lawyer and
client made during the employment of the lawyer. In the opinion of the Bombay High Court,
these provisions by necessary implication protect the documents prepared by the client in
anticipation of litigation either for seeking legal advice or for using them in that litigation.22
Further, s. 126 clearly requires that there be express consent of the client in order for privileged
information to be divulged. It is not enough that the client fails to assert or claim that the
communication is privileged.23 This is probably provided in order to ensure that clients do not
unwittingly or unknowingly waive privilege as it might be antithetical to their interests. Clearly
the legislature intended to provide high procedural requirements that must be met before a
lawyer can testify as to confidential information.
The Law Commission in its proposed amendment had stated that the words “barristers, pleaders,
attorneys and vakils” in all these sections be replaced with “legal practitioner” in ss. 126-128, so
as to cover all legal practitioners. This seems to be a sensible alteration of the provisions, as
currently the provision seems to suggest that that there is some difference in the protection given
to the client under s. 129 and the legal practitioners under ss. 126-128. Also, this amendment
adds an exception to the rule which allows this information to be used in disputes between the
attorney and the client.24
The conditions under s. 129 are that the document must be in the nature of both internal legal
advice and also opinions of counsel as well as in anticipation of litigation.25

22
Larsen & Toubro Limited vs. Prime Displays (P) Ltd., [2003] 114 Comp Cas 141(Bom).
23
Mandesan v. State of Kerala, 1995 Cri LJ 61 (Ker).
24
185th Law Commission Report, available at lawcommissionofindia.nic.in/reports/185thReport-PartV.pdf, last
visited on 24.12.2009. This is the same recommendation as was made in the 69th report, but was not acted
upon. See 69th Law Commission Report, available at lawcommissionofindia.nic.in/reports.
25
Larsen & Toubro Limited vs. Prime Displays (P) Ltd., [2003] 114 Comp Cas 141(Bom).

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Further, s. 129 has been specifically left broad by the use of the term “any legal advisor” and not
barrister, attorney, pleader or vakil, as other sections use. This implies that the coverage of this
section is also broader.
The only statements that are protected are those made to an attorney in his capacity as an
attorney.26 Therefore, when something is said to the attorney along with the opposite party,27 or
when a lawyer testifies as to information that he has by virtue of being a witness, 28 then attorney
client privilege cannot be used to punish the lawyer for misconduct.
The statute itself limits the scope of the privilege both in terms of the substantive conditions
required to be fulfilled as well as exceptions to the rule. The first exception is with respect to
communication for an illegal purpose. This illustration clarifies that if a person asks a lawyer for
help in forging a deed the communication is not privileged communication. This is clearly in
consonance with the purpose of privilege being granted, and therefore is perfectly
understandable. In the United Kingdom, this exception is narrower. The purpose of the
communication must not only be illegal, it must also be criminal.
In Superintendent and Remembrancer of Legal Affairs, West Bengal v. S. Bhowmick,29 the Court
held that any communication that had instructions from the client was privileged, including, as
was the case in the particular factual matrix, notes on the examination in chief of a witness for
the other party. Communication from a third party to the lawyer, meant to be transmitted to the
client, is also considered privileged if it was information connected to the general purpose of the
legal advice.30
Section II of the BCI Rules provides the duties that a lawyer has towards his client. One of these
is the duty to comply with s. 126 of the Evidence Act, which provides the confidentiality clause
in Indian law. Courts can either grant an injunction preventing the lawyer from making
confidential public or award damages to a client who has had such confidential information made
public. Other possible measures include action being taken against the lawyer by the Bar
Council, as such

26
M. C. Sarkar et al., Sarkar’s Law of Evidence, (15th edn., S. Sarkar and anr. eds., Nagpur: Wadhwa and Company,
1999), at p. 424-425
27
Memon Hajee Haroon Mahomed v. Molvi Abdul Kuran & another, (1878) 3 Bom 91; Rebecca Mondal v.Ram
Pratap, AIR 1989 AP 321.
28
V Ravi v. State of Kerala, 1994 Cri LJ 162 (Ker).
29
Superintendent and Remembrancer of Legal Affairs, West Bengal v. S. Bhowmick, AIR 1981 SC 917.
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30
Balabel v. Air India, AIR 1993 SC 1246.

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activity would constitute misconduct, which the Bar Council is empowered by s. 35 of the
Advocates Act, 1961 to deal with.
The Supreme Court has recently held that there is no presumption that only because two lawyers
are practicing from the same chamber, they would breach their confidentiality or commit some
act which would amount to professional misconduct31 This is part of a broader trend of the Court
to be less interventionist in matters concerning private contracts.
The privileges mentioned in Sections 126 and 129 are designed to secure the clients confidence
in the secrecy of his communication. Any breach of the confidence is a stigma not only on the
individual concerned, but is also likely to have effect on credibility of the profession as a
whole.32 Based on this principle, it has been held that a salaried employee who gives his
employer legal advice would be in the same position as someone who is an advocate whose
services are hired for a particular legal matter.33 Hence, these provision has been extended to
apply to in-house counsel as well. This seems to follow from the principle that the law is based
on, as it is clear that the need for the privilege extends to anyone seeking to give meaningful
legal advice.
The Andhra Pradesh High Court has also held that the exception does not apply in cases where
he advocate was not acting in his capacity as an advocate. 34 So, for example, when the advocate
was witness to a sale agreement in his personal capacity, he can be called upon to give evidence
with respect to that agreement.
Another situation that has come before the courts is one where the advocate is examined in order
to prove a fact that is not a confidential fact. In such cases, for example when an advocate is to
be questioned about the service of a notice on the opposite party, the court has held that the
privilege provided under s. 126 is not violated.35 Again in Rev. Fr. Bernad Thattil v.
Ramachandra Pillai,36 the same question arose and it was pointed out that whatever was written
or was stated in the notice was evidently the substance which was meant for being disclosed to
others and more particularly to the other side. The rational for this seems to lie in the fact that the
attorney client privilege has been created as a specific exception to the general obligation to give
evidence, and therefore it is to be as limited as possible. Since the information in question here
is anyway public, there is no

31
Sneh Gupta v. Devi Sarup and Ors., (2009) 6 SCC 194.
32
Council of Institute of Chartered Accountants of India v. B Ram Goel, [2002] 111 CompCas 355 (Delhi).
33
Municipal Corporation of Greater Bombay and Anr. v. Vijay Metal Works, AIR 1982 Bom 6.
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34
Gara Padmanabham v. Neti Narasimha Sastry and others, 2000 (6) ALT 364.
35
P.G. Anantasayanam and others v. P.G. Anantasayanam and others, 1998 (2) ALT 675.
36
Rev. Fr. Bernad Thattil v. Ramachandra Pillai, 1987 Cr L.J. 739.

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benefit to extending privilege to cover these situations. No client will in any way disclose less to
his lawyer due to the fact that this information is public. Therefore, privilege is not extended to
cover these situations. However, inquiries of this nature must be limited to questions about
matters that are not confidential, and the lawyer must not answer questions that go beyond this.
Another important provision of law relevant to the existence of attorney client privilege is s. 91
of the Code of Criminal Procedure 1973. This provision allows a Court to order any person in
possession of any document to produce the same before the Court. While the section specifically
exempts its application to s. 123 and s. 124 of the Indian Evidence Act, the same is not true of ss.
126-129.37 This suggests that the intention of the legislature was to have s. 91 of the Code
override these provisions. One alternative suggested by some cases and authors is to use s. 162 of
the Evidence Act to harmoniously construe the two provisions. This can be done as s. 162 allows
the Court to decide whether particular documents presented before the Court are to be admissible
as evidence or not. Therefore, even when disclosure of a document is made pursuant to s. 91 of
the Code, the document can be ruled inadmissible thus protecting the intent of s. 126 in part.
However, this might not allay all the fears that a client may potentially have, as the decision on
whether to allow the document as evidence is left to the judge.
In V.C. Rangadurai v. D. Gopalan,38 the court, speaking through Justice Sen, has held that
relationship between an attorney and his client is a personal relationship involving the highest
trust and confidence. As a result, the relationship is often considered a fiduciary relationship,
creating upon the attorney the duties that come with such a relationship.39 An advocate must be
considered more than just an agent of the client, as his role and duties go beyond that. The Courts
have also noted that a breach of this privilege by lawyers affects not only the individual lawyer,
but also the credibility, and therefore the ability of the profession as a whole.40
Therefore it is clear that the position of Indian law, similar to that of British law, is
overwhelmingly in support of the existence of this privilege and its almost universal
applicability.

37
S. 91(3), Code of Criminal Procedure, 1973
38
V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281.
39
Kailash Rai, Legal Ethics, Accountancy for Lawyers and Bench Bar Relations, (6th edn., Allahbad: Central Law
Publications, 2005), at p. 61
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40
The Council of the Institute of Chartered Accountants of India, New Delhi v. Mani S. Abraham, AIR 2000 Ker 212.

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EXCEPTIONS TO THE RULE ACROSS JURISDICTIONS

One interesting question that has come up is with regard to the temporal duration of the
privilege. While it is clear that the privilege extends till after the relationship between the
attorney and the client has ceased to exist, there have been several cases dealing with whether
this privilege extends till after the death of the client. Since the purpose served by the privilege is
to protect the interest of the client, it should ideally not extend beyond the point where the client
has ceased to have an interest in the matter. So as far as civil suits are concerned, privilege has to
extend after death as the estate of a deceased client can be sued. But as far as criminal cases are
concerned, an argument has been made for allowing courts to require attorneys to testify
providing privileged information if it helps exculpate someone wrongly accused of a crime, since
the client is dead and cannot be charged for the crime anyway.
The Courts across the UK, USA and India have, however, held that this information is not to be
made public even after the death of the client, and even if it could potentially save another person
from being wrongfully convicted. In the United Kingdom, the House of Lords discussed this
matter inBullivant and Others v. Attorney General of Victoria.41 The court found that privilege is
not destroyed by the death of the testator. However, the Court doesn’t say why.
In the United States, the US Supreme Court in Swindler and Berlin v. U.S.,42 the Court held
similarly. Here it was stated that the presumption has always been that except in certain specified
cases privilege would extend beyond death. The rationale used in this case was that in the event
that such information was to be made public, the client may choose to not reveal it in the first
place. The Court debunked the idea that there is nothing to lose for the client if the disclosure
takes place after his death, citing reputation, civil liability and potential harm to family as three
problematic consequences of such disclosure. In India there hasn’t been a ruling on the point,
though one case in passing has mentioned that privilege extends beyond the death of the client.[ 43
However, this is unlikely to apply as precedent if this issue does come up before the courts at any
point, as it is obiter dicta.

41
Bullivant and Others v. Attorney General of Victoria, (1901-03) All ER 812.
42
Swindler and Berlin v. U.S. 118 S Ct. 2081 (1998).
43
Ayesha Bi v. Peekam Shahib and Others, AIR 1954 Raj 741.

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Another situation in which privilege may be sought to be waived is one where child care is
concerned. While there have been no cases on this in India, 44 the United Kingdom has seen the
House of Lords take the position that privilege can be forcibly waived in cases concening child
welfare.45 The principle used here was that child-care proceedings are not adversial in nature in
the first place. Therefore, the benefits that accrue from providing parties with the attorney-client
privilege would not accrue here, as the parties were no adversarial and not competing with each
other. However, while the justification for confidentiality is partly the adversarial nature of the
system, but not only that. There is also the practical justification of this information being
disclosed to the lawyer only because the client knows that it is not going to go to anyone except
the lawyer. This problem will not go away in such cases.46
Another standard exception to the privilege rule is one of public interest. This is applied in the
United States as well as the UK for medical professionals. The courts in India have also agreed
that there is a public interest exception to doctor patient confidentiality, in the case of a doctor
telling his patient’s potential wife that he is HIV positive.47Here, public safety is considered more
important than privilege.48 Therefore, in cases where a lawyer is aware that a client is about to
commit a crime, or cause serious bodily injury to a third party, he can disclose this information,
and privilege does not apply.
In cases where the information is a public safety concern but not a crime, the rules in the UK do
not provide any real guidance. (example of unsafe building).
Another important exception to the rule of privilege in the UK is in money laundering cases.
Some jurisdictions in fact create a poisitive obligation on lawyers to reveal information regarding
money laundering.
An area where this privilege would have to be broken, but is not covered by Indian law currently,
is litigation between an attorney and his erstwhile client. If a client sues an attorney, the attorney
is at liberty to use information divulged to him by the client, as it is assumed that suing the
attorney

44
C.S. Raghu Raman, “Child Care Proceedings — Disclosure of Privileged Communications Between Client and his
Attorney”, AIR 2007 Jour 56.
45
Re L (A Minor) Police Investigation— Privilege, (1996) 2 All ER 78 (HL).
46
Andrew Boon and Jennifer Levin, The Ethics and Conduct of Lawyers in England and Wales¸ Oxford: Hart
Publishing, 1999 at p. 254.
47
Mr. ‘X’ v. Hospital Z, AIR 1999 SC 495.
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48
R v. Egdell, [1990] 1 All ER 835.

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constitutes implied waiver of privilege.49 This has been suggested in the 185th Law Commission
Report, but isn’t part of the law yet.50
After this, in the late 20th century, it was held that if there are documents in the possession or
control of a solicitor which, on production, help to further the defence of an accused person, then
no privilege is attracted. It was also laid down that the ‘balancing of conflicting interest’ exercise
has to be done by the Court.51 However, this was over-ruled in a House of Lords judgment in the
1990’s.52 In this case the Court debunked the notion of balancing and said that the balance has
been achieved when giving the privilege in the first place, and that must be maintained. Further,
the court argued that qualifying the privilege in this manner would take away from the notion of
confidence, which is a problem in itself. The judges used the logic that such a move would deter
people from disclosing material facts to their lawyers in the future as well.
One different take on the public interest exception has found favour especially in the United
States in light of the fraudulent activities of corporations like ENRON and World Com has been
in terms of the philosophical justifications of the sameAs a result, several ethical guidelines or
model rules are being created and existing rules are being converted to legally binding rules in
order to ensure that public interest is upheld.
An important question has also arisen with respect to former client confidentiality. Several
clients have come to courts asking for injunctive relief against their lawyers who seek to
represent the former client’s rival. The court has acquiesced to this request at points, but laid
down a standard that the client has to have a reasonable belief that confidentiality will be
breached.53 The standard for the UK and some other parts of the commonwealth was laid
down in Prince Jefri Bolkiah v KPMG,54 which has been distinguished on fact in later cases.
The distinguishing on facts is usually a function of whether the Chinese walls set up for the
purpose of ensuring that confidentiality isn’t breached are sufficient for the same.

49
Andrew Boon and Jennifer Levin, The Ethics and Conduct of Lawyers in England and Wales¸ Oxford: Hart
Publishing, 1999 at p. 261; See Lillicrap v. Nalder & Son, [1993] 1 All Er 724 (CA)
50
185th Law Commission Report.
51
R v. Barton, 1972 (2) All ER 1192; R v. Ataou, 1988(2) All ER 321.
52
R vs. Derbyshire Magistrates Court ex parte B, 1995(4) ALL ER 526.
53
Harry McVea, “”Heard it Through the Grapevine”: Chinese Walls and Former Client Confidentiality in Law Firms”,
Cam LJ 2000, 59(2), 370-389.
54
Prince Jefri Bolkiah v KPMG, [1999] 2 A.C. 222.

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CONCLUSION:
In conclusion, this paper has analyzed that attorney client privilege is essentially an exception to
the rule that all people can be required to divulge information if the court requires them to.
However, the essential nature of this ‘exception’ has given it the status of a substantive rule of
law, usually to be found in the rules of evidence of various countries that are a part of the
common law tradition. As a result, the provisions containing this privilege are construed and the
exceptions to them are construed in a strict manner.
The paper looks at the rationale behind the provisions and most proponents of attorney-client
privilege base their belief in it on the practical implications of its removal. Legal business would
cease to take place if clients could not be sure that the lawyer would not take his secrets to the
grave. The need for these provisions is therefore not grounded in any moral or ethical
understanding of the legal understanding, but rather on a practical understanding of how the legal
profession works.
The paper then analyzes the rules governing this as they exist in various countries as well as the
exceptions to the same across the same jurisdictions. One common thread that seems to flow
across all jurisdictions is with regard to an exception when a crime is about to be committed. In
summary, the researcher would like to state that in his opinion, the exceptions to this rule should
be given a broader understanding. The practical problems connected with the abolition of
privilege are not large enough to ignore the harms of keeping this information secret. Keeping
citizens alive must trump this right, and that is without question the way forward. Some
jurisdictions see this as the way forward, and others would do well to follow their lead.

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 BIBLIOGRAPHY
Articles
1. Andrew Marble, “Vital to Adversarial System or Adversary of Justice?”, sourced
fromwww.pennjil.com/jilp/1-1_Marble_Andrew.pdf.
2. Arti Joshi, “Right to Confidentiality in an Attorney-Client Relationship”, 2003 CILQR
486.
3. C. S. Raghu Raman, “Attorney-Client Privilege — Does it Survive the Death of Client —
State of Law in US, England and India”, 2007 (3) Cri. L. J. 187.
4. Gavin Murphy, “The Innocence at Stake Test and Legal Professional Privilege: A
Logical Progression for the Law…but not in England”, Crim. L.R. 2001, SEP, 728-731.
5. Harry McVea, “”Heard it Through the Grapevine”: Chinese Walls and Former Client
Confidentiality in Law Firms”, Cam LJ 2000, 59(2), 370-389.
6. Karan Tyagi, “Attorney Client Privilege and its Extension to Criminal Proceedings”, 2008
(3) Cri L.J. 180.
7. Soli J. Sorabjee, “Lawyers as Professionals”, AIR 2002 Jour 4.
Books
1. K. Gururaja Chari, Advocacy and Professional Ethics, (Allahbad: Wadhwa and Co. ,
2000).
2. Kailash Rai, Legal Ethics, Accountancy for Lawyers and Bench Bar Relations, (6th edn.,
Allahbad: Central Law Publications, 2005).
3. M. C. Sarkar et al., Sarkar’s Law of Evidence, (15th edn., S. Sarkar and anr. eds., Nagpur:
Wadhwa and Company, 1999).
4. Ramanatha Aiyer, Legal and Professional Ethics: Legal Ethics, Duties and Privileges of
a Lawyer, (3rdedn., Nagpur: Wadhwa and Co., 2003).

Miscellaneous
1) 185th Law Commission Report, available
atlawcommissionofindia.nic.in/reports/185thReport-PartV.pdf.
2) 69th Law Commission Report, available at lawcommissionofindia.nic.in/reports.

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