A “privileged professional communication” is a protection given to a communication between the client and the legal adviser. Professional correspondence and confidential communications with legal counsel have been given immunity under the 1872 Indian Proof Act (“the Act”). If there was no right at everyone, all would be thrown into their own legal resources. A guy, deprived of all professional assistance, would not risk consulting any competent person, or would only dare to say half of his case to his counsel. From the perspective of India and a few other countries in the world, we will discuss this topic. We will address Indian law in this article as to how it perceives attorney-client privilege.
Privileged Communications
Sections 126 to 129 of the Act in India deal with privileged contact linked to skilled communication between a legal consultant and the client.
The section also offers some special grounds on which such a right is refused, in support of any improper intent or evidence which are brought to the attention of the attorney, demonstrating that either crime or fraud has been committed since the beginning of the employment of the attorney in the matter in question. It is irrelevant whether or not the attention of such a barrister, [pleader], solicitor or vacant attorney was drawn to that fact by or on behalf of his client.
Section 127 expands the right given to interpreters, clerks and servants of a legal advisor under section 126.
Section 128 fails to oblige the legal advisor to report all details protected by Section 126, unless the client calls and asks the legal adviser as a witness.
Section 129 specifies that no person shall be obliged, unless he offers himself as a witness, to reveal to the court any confidential correspondence which has taken place between him and his legal professional advisor.
A correspondence by a party to its pleader must be of a confidential nature to assert privilege under section 126 of the Act. (3 Bom. 91) (Memon Hajee Haroon Mohomed v. Abdul Karim [1878]). There is also no privilege for correspondence made prior to the establishment of a pleader and client relationship. Cal 1379, para 5) (Kalikumar Pal v. RajkumarPal 1931 (58)
India’s Bar Council Rules
The Bar Council of India Rules (‘BCIR’) stipulate certain requirements of professional actions and etiquette for all advocates (legal advisers). Section II, Rule 17 of BCIR, Part VI, Chapter II, states that ‘A lawyer shall not conduct, explicitly or indirectly, an infringement of the responsibilities imposed by Section 126 of the Indian Proof Act,’ thus reiterating the spirit of privilege of the attorney-client, the infringement of which would also lead to a breach of the rules of the Bar Council.
In-House Counsel
If a full-time employee does not plead on behalf of his employer, or if conditions of employment are such that he does not have to act or plead but is required to perform other types of duties, then he ceases to be a lawyer. The latter is then a mere government or corporate employee.
The judgment also cites Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules, which states that ‘a lawyer shall not be a full-time salaried employee of any individual, government, company, corporation or concern, as long as he continues to practice and shall take up such employment intimately before the Bar Council on whose roll his name appears, and shall ceaa thereupon cea An advocate should not be a salaried full-time employee. The only exception is if the individual is a Central Government Law Officer of a State or any public company eligible to be admitted to the Bar.’
The court ruled in Municipal Corporation of Greater Bombay v. Vijay Metal Works (AIR 1982 Bom 6) 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 Ss.126 and 129.
Relations between clients and in-house lawyers in India will also usually have to be checked if the in-house attorney is a full-time salaried employee, as provided for in BCIR Part VI, Chapter II, Section VII, Rule 49.
In addition, it may be important to distinguish whether the advice obtained is legally or executively competent.