Discussion Board: Testing the contours of lawyer-client privilege

Illustration: Binay Sinha
Amit K Desai, senior advocate
Balance the privilege with needs of investigation

Attorney Client Privilege is the fulcrum of the relationship between a client and his/her lawyer. It is one of the oldest forms of protection under the privacy doctrine and a fundamental right in all democracies. It is a permanent privilege which commences when the client initiates the process for seeking advice. Its intent is to enable a full and frank disclosure to his lawyer who in turn can discharge his duties towards his client.

In India, as far back in 1872, (the Indian Evidence Act) had recognised the importance and significance. It is evident from the catena of provisions on the subject (S.126, 127, 128, 129, 130 and 131) with the only exception is the "fraud exception" in S.126. The founding fathers recognised the importance for an accused to "consult" and be defended by a lawyer of his/her choice and provided an inviolable right for the same in chapter III, Art. 22 of the Constitution. This "consultation" must be "without the hearing of the police" (Cecelia Fernandez v. State, Bombay High Court). This is solely because this communication is privileged making it a facet of Art.22, a fundamental right. In Nandini Sathpathy, the Supreme Court recognised the right of an accused to consult his lawyer at the police station. The CrPC introduced this right into S.41D in 2008.

Considering the nature of this privilege, should investigating agencies be allowed to search lawyers' offices? In the last few years, investigating agencies are carrying out searches of law firm offices. The entry of such agencies in the midst of large amounts of privileged material of multiple clients is a cause for concern. There is an immediate need to evolve a procedure which recognises the constitutional nature of the privilege, the rights of the clients, and the obligations of lawyers to their clients and to investigators. Recovery of unprivileged records delivered by clients for advice neither makes such law firms conspirators with their clients nor liable for receiving stolen property. Such allegations negate the purpose of the privilege.

A lawyer's office should not be a safe harbour for relevant primary evidence. But, how does one balance the privilege with the needs of the investigations? The USA and the UK have fairly well-established processes. Search warrants are issued only if less intrusive means have been considered and rejected. The agencies must ascertain if the required evidence is available from other sources or whether a notice to produce would suffice. Independent legal advice is taken on the need for such a search before issuing the warrant. If a search warrant is issued, either an independent counsel or a 'privilege team' of independent persons is kept present to protect legal privilege.

Views expressed are personal
Shehnaz Ahmed, senior resident fellow,

Vidhi Centre
Put in place guidance on attorney-client privilege

'Legally Privileged & Confidential' are the words with which most lawyers begin typing an email or a legal document. They are used to indicate that such communication or document is governed by attorney-client privilege. Since the attorney-client relationship is fiduciary in nature, any information provided by a client to an attorney in relation to a matter for which he/she is engaged, shall not be disclosed to any third party, including a court of law. The intent is to ensure the client consults his/her attorney in confidence, as otherwise, he/she might hold back half the truth. Also, this protection is an important adjunct to privilege against self-incrimination in a criminal matter. 

Param Pandya, research fellow,

Vidhi Centre
But how does the rubber meet the road? In India, Section 126 of the Indian Evidence Act, 1872, provides that an attorney is under no legal obligation to disclose privileged communication to third parties unless the client expressly or impliedly waives such privilege. Such protection covers any communication, document, legal opinion and work product, whether in draft form of final, related to the matter such attorney is engaged. The Bar Council of India Rules reiterates an advocate shall not commit a breach of the obligations imposed by Section 126.

The crime-fraud exception to attorney-client privilege is a globally recognised and has been also inscribed in Section 126. However, the language used i.e. "any fact observed by an attorney showing a crime or fraud has been committed" appears to be vague. The recent raids in the Nirav Modi fraud have raised an important question as to the status of investigations, which documents could be confiscated by an investigating agency and what is their evidentiary value in court? One view suggests documents pertaining to an engagement with the client will be privileged whereas unrelated documents may not. The rationale is that the attorney cannot act as a 'safe heaven' for the client to hide information. Unless such a matter is adjudicated, no decisive interpretation is possible. 

In India, unlike in the UK and the US, there is no guidance on the attorney-client privilege, which may need to be put in place. Quoting Justice Rehnquist from Upjohn & Co. v. United States (1981) is apt in the Indian context - "An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all."

Views expressed are personal

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