Dr. RAM MANOHAR LOHIYA NATIONAL LAWUNIVERSITY, LUCKNOW

A Final Draft submitted for the project workundertaken in the partial fulfillment of B.A. LLB.

(Hons.) – 9th semester at Dr. RMLNLU, Lucknow.

TOPIC: Privileged Communications between

a Lawyer and Client

UNDER THE GUIDANCE OF

Ms. SHAKUNTALA SANGAM

ASSISTANT PROFESSOR OF LAW

Dr. RMLNLU, LUCKNOW

SUBMITTED BY:

SHIV SHRUTIKA

ROLL NO. – 127Page | 1

SEMESTER – 9th

SECTION – B

TABLE OF CONTENTS

S. NO. PARTICULARS PAGE

NO.

1 ORIGINS AND RATIONALE OF THE ATTORNEY

CLIENT PRIVILEGE RULES

4

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

5

3 THE RULE IN INDIA

4 EXCEPTIONS TO THE RULE ACROSS JURISDICTIONS 7

5 CONCLUSION

12

6 BIBLIOGRAPHY

16

7 ARTICLES

16

8 BOOKS

17

Page | 2

9 MISCELLANEOUS

17

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

1 Soli J. Sorabjee, “Lawyers as Professionals”, AIR 2002 Jour 4.Page | 3

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 fibre 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

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 Lawyers In Public Opinion, Jokes, And Political Discourse”, 66 U. Cin. L. Rev. 805.

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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.

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.

Style of Writing:

The researcher has used a uniform mode of citation through this

paper

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.

Chapterization:

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This paper is divided into the following sections:

Section One: Origins and Rationale of the Attorney Client

Privilege Rules

Section Two: The Rule in the UK, USA, Canada and European Union

Section Three: The Rule in India

Section Four: Exceptions to the rule across jurisdictions

Mode of Citation:

A uniform mode of citation has been used for the entirety of 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

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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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 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. In9 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

6 K. Gururaja Chari, Advocacy and Professional Ethics, (Allahbad: Wadhwa and Co. , 2000), at p. 143.7 Id.8 Kishore Lal v. Chairman, Employees State Insurance Corporation, AIR 2007 SC 18199 Id.10 P. Ramanatha Aiyer, Legal and Professional Ethics: Legal Ethics, Duties and Privileges of a Lawyer, (3rdedn., Nagpur: Wadhwa and Co., 2003)

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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:

“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

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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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

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. 11915  K. Gururaja Chari, Advocacy and Professional Ethics, (Allahbad: Wadhwa and Co. , 2000), at p. 14116 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 fromwww.pennjil.com/jilp/1-1_Marble_Andrew.pdf, last visited on 29.08.2012.

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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 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

18 126. Professional communications – No barrister, attorney, pleader or vakilshall, 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 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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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

21 Gurunanak Provisions Stores v. Dulhonumal Savanmal and Ors., AIR 1994 Guj 31.Page | 11

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

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).

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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

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, when24 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 atlawcommissionofindia.nic.in/reports.25  Larsen & Toubro Limited vs. Prime Displays (P) Ltd., [2003] 114 Comp Cas 141(Bom).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

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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

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 917.30 Balabel v. Air India, AIR 1993 SC 1246.

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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 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

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).

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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

33 Municipal Corporation of Greater Bombay and Anr. v. Vijay Metal Works, AIR 1982 Bom 6.34 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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the information in question here is anyway public, there is no

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

37 S. 91(3), Code of Criminal Procedure, 1973Page | 17

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

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

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. 6140 The Council of the Institute of Chartered Accountants of India, New Delhi v. Mani S. Abraham, AIR 2000 Ker 212.

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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

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).

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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.

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

43 Ayesha Bi v. Peekam Shahib and Others, AIR 1954 Raj 741.44 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).

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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 constitutes46 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 495.48 R v. Egdell, [1990] 1 All ER 835.

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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.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 AllEr 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.

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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.

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.

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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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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BIBLIOGRAPHYArticles

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. C.S. Raghu Raman, “Child Care Proceedings — Disclosure of

Privileged Communications Between Client and his Attorney”,

AIR 2007 Jour 56

5. 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.

6. Harry McVea, “”Heard it Through the Grapevine”: Chinese

Walls and Former Client Confidentiality in Law Firms”, Cam

LJ 2000, 59(2), 370-389

7. Karan Tyagi, “Attorney Client Privilege and its Extension to

Criminal Proceedings”, 2008 (3) Cri L.J. 180.

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8. 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

Websites:

1) en.wikipedia.org/wiki/Attorney–client_privilege

2) www.legalserviceindia.com/articles/pc.htm

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3) www.legalsutra.org/wp...privilege/Client-Attorney-

Privilege.doc

4) www.pennjil.com/jilp/1-1_Marble_Andrew.pdf

5) http://blog.ipleaders.in/privileged-communications-lawyers-

duty-client-information-confidential/

6) www.wc.com/assets/attachments/EP_(5).pdf

7) technet.microsoft.com/en-us/library/ff367906.aspx

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