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:

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:

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.

Further, under section 91 of the (Indian) Code of Criminal Procedure, a court can compel the production of any document, and the person in whose possession it is, if the document is necessary or desirable for the purpose of 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.

Under Indian law, the board of directors of a corporation, or an authorised representative thereof, are understood to be in control of the corporation. In the case of protection of attorney-client communications, the board of directors, or a duly authorised representative, may be understood to be in control.

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 privilege.

Accidental disclosure

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:

Litigation proceedings overriding the protection

Can the protections for attorney-client communications be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?

Under section 91 of the Code of Criminal Procedure, a court can compel the production of any document, and the person in whose possession it is, if the document is necessary or desirable for the purpose of any inquiry, trial or other proceeding.

The court in Chandubhai 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, when holding a document on behalf of a client, is acting as the agent of the client, and if the client is compellable to produce the document, there is no reason based 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 requested in Chandubhai from the attorney of the accused was obviously not a letter in respect of which any privilege could have been claimed by the attorney of the accused under section 126 of the Act.

In civil proceedings, under section 30 (Order XI) of the Code of Civil Procedure, a party can seek discovery or summons by issuing interrogatories, demanding production of documents by the other party and so forth. In such circumstances, attorney-client privilege is a ground to object to discovery.

Recognition of foreign protections

In what circumstances are foreign protections for attorney-client communications recognised in your jurisdiction?

This is not a settled question of law in India. In a given case, the question of whether foreign protections for attorney-client privilege exist or not would be a question of foreign law. Under Indian law, questions of foreign law are treated as questions of fact. Therefore, foreign protections for attorney-client communications will be recognised if the same is proven as a fact before an Indian court.

Best practice to maintain protection

Describe the best practices in your jurisdiction that aim to ensure that protections for attorney-client communications are maintained.

There are no prescribed best practices in India to maintain protections for attorney-client communications. It is advisable to mention the words ‘privileged and confidential’ in attorney-client correspondence.

Authors:
Aditya Vikram Bhat, Partner
Priyanka Shetty, Senior Associate