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PRIVILEGED COMMUNICATIONS BETWEEN ATTORNEYS AND CLIENTS

Introduction:

The attorney-client privilege is the oldest privilege recognized by Anglo-American


jurisprudence. In fact, the principles of the testimonial privilege may be traced all the way back
to the Roman Republic, and its use was firmly established in English law as early as the reign of
Elizabeth I in the 16th century. Grounded in the concept of honor, the privilege worked to bar
any testimony by the attorney against the client.1 The underlying principle of the privilege is to
provide for “sound legal advice and advocacy.2 Shielded by the privilege, the client may be more
willing to communicate to counsel things that might otherwise be suppressed. In theory, such
candor and honesty will assist the attorney in providing more accurate, well-reasoned
professional advice, and the client can be secure in the knowledge that his statements to his
lawyer will not be taken as an adverse admission or used against his interest3.

For all of its policy considerations and justifications, the attorney-client privilege has a very real
practical consequence: the attorney may neither be compelled to nor may he or she voluntarily
disclose matters conveyed in confidence to him or her by the client for the purpose of seeking
legal counsel. Likewise, the client may not be compelled to testify regarding matters
communicated to the lawyer for the purpose of seeking legal counsel4. There is no single
authority on the attorney-client privilege, it has been defined in various case laws. One federal
judge opined that “The privilege applies only if

(1) the asserted holder of the privilege is or sought to become a client;

(2) the person to whom the communication was made

(a) is a member of the bar of a court, or his subordinate and

(b) in connection with this communication is acting as a lawyer;

1
Edna Selan Epstein, The Attorney-Client Privilege And The Work-Product Doctrine, (4th ed. 2001),pg 2.
2
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)
3
Paul R. Rice, Attorney-Client Privilege: Continuing Confusion About Attorney Communications, Drafts, Pre-
Existing Documents, and the Source of the Facts Communicated, 48 AM. U. L. REV. 967, 969-70 (1999).
4
Supra Note 1 at pg 3.,
(3) the communication relates to a fact of which the attorney was informed

(a) by his client

(b) without the presence of strangers

(c) for the purpose of securing primarily either

(i) an opinion on law or

(ii) legal services or

(iii) assistance in some legal proceeding, and not

(d) for the purpose of committing a crime or tort; and

(4) the privilege has been (a) claimed and (b) not waived by the client.”5

There are four basic elements necessary to establish its existence: (1) a communication; (2) made
between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or
providing legal assistance to the client6.

In India, Sections 126 to 129 of the Act deal with privileged communication that is attached to
professional communication between a legal adviser and the client.

What constitutes an Attorney-Client relationship?

Before the privilege exists, there must be an attorney-client relationship. Many clients assume
the relationship exists and mistakenly rely upon the protection of the privilege, but the privilege
does not exist until the relationship is firmly established. Generally speaking, the attorney-client
privilege does not take hold until the parties have agreed on the representation of the client. But
unfortunately, it is not always so clear when an attorney-client relationship exists. Suppose A
contacted B, an attorney, by telephone. During the course of the conversation, A explains to B
that she is involved in a dispute with the Internal Revenue Service concerning a tax savings
arrangement devised for certain business objectives. She discloses important facts and highly

5
United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950)
6
Ibid.,
sensitive information during the conversation, then asks B for his legal opinion. Is the content of
this conversation privileged? It depends.

An express contract is not necessary to form an attorney-client relationship; the relationship may
be implied from the conduct of the parties. However, the relationship cannot exist unilaterally in
the mind of the client when there is no “reasonable belief” that the attorney-client relationship
exists. The implied relationship may be evidenced by several factors, including, but not limited
to, the circumstances of the conversation, the payment of fees to an attorney, the degree of
sophistication of the would-be client, the request for and receipt of legal advice, and the history
of legal representation between the alleged client and the practitioner7.

In the given example above, a confidential relationship likely does not exist unless there is some
history of former representation. Of course, if the conversation continued, and B proceeded to
dispense legal advice, then Smith might have a reasonable belief that the relationship exists. This
reasonable belief would be strengthened by evidence that Smith and Jones discussed payment,
potential courses of action, and other details regarding the future handling of the matter.

In the corporate context, the attorney-client privilege exists between outside counsel and the
corporation. Necessarily, however, the invocation of this right by a corporation is more complex
than when an individual is involved, as a corporation is an artificial “person” created by law and
is only able to act through a representative, including officers, directors and employees.

The courts have faced the difficult task of determining when the attorney-client privilege applies
when a corporation is the client. For years, courts employed one of two “tests” to make this
determination: the subject matter test8 and the control group test9. The current trend, however,

7
J. Randolph Evans, Practical Guide To Legal Malpractice Prevention, (Institute of Continuing Legal Education in
Georgia, 2002),pg 45-49
8
The subject matter of the communication was the primary focus of the “subject matter” test. Under this test, courts
had to determine (a) whether the purpose of the communication at issue involved seeking and rendering legal advice
to the corporation, (b) whether the employee’s superior had insisted that the communication be made by the
employee, and (c) whether the subject matter of the communication to the attorney was within the scope of the
duties of the employee in question. Thus, under this test, if the subject matter of the communication to the attorney
involved the duties of the employee to the corporation, the attorney-client privilege would cover said
communication, irrespective of the corporate rank of the employee that made the communication. See Harper &
Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d by an equally divided court, 400 U.S. 348
(1971).
focuses on whether the matters discussed hold within the corporate duties and responsibilities of the
employee.

From the example before, suppose that A represents her of her corporation, ABC Company (ABC).
A is the president or chief financial officer of ABC, and discusses with B, the attorney,the tax
exposure or potential liability of ABC. Because A is the president of the corporation, the privilege
clearly extends to these communications. If, however, the call was made by D, the accounting
manager, the answer becomes less clear. Based upon the current trend of the courts, D’
conversations with the attorney are privileged so long as the issues she discusses with the attorney
are directly related to her responsibilities within the company.

Attorney client privileges in India:

Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to:

1. Disclose any communication made to him by or on behalf of his client or any advice given by
him to his client in the course and for the purpose of his employment;

2. to state the contents or conditions of any document with which he has become acquainted in the
course and for the purpose of his employment.

There are certain exceptions to this rule. This Section does not protect from disclosure:

1. any communication made in furtherance of any illegal purpose;

2. any fact observed in the course of employment showing that any crime or fraud has been
committed since the commencement of the employment.

The protection afforded under this Section cannot be availed of against an order to produce
documents under Section 91 of the Code of Criminal Procedure.

9
The “control group” was defined by courts as including those employees who were in a position of control such
that they could play a substantial role in determining what action the corporation would take upon receiving the
legal advice. See, e.g., City of Philadelphia v. Westinghouse Elec. Corp., 210 F. Supp. 483, 485-86 (E.D. Pa. 1962)
Section 91 of the Code of Criminal Procedure states, "Summons to produce document or other
thing:

1. When any Court or any officer in charge of a police station considers that the
production of any document or other thing is necessary or desirable for the
purpose of any investigation, inquiry, trial or other proceeding under this Code
by or before such Court or office , such Court may issue a summons, or such
officer a written order, to the person in whose possession or power such
document or thing is believed to be, requiring him to attend and produce it, or to
produce it at the time and place stated in the summons or order.

2. Any person required under this Section merely to produce a document or other
thing shall be deemed to have complied with the requisition, if he causes such
document or thing to be produced instead of attending personally to produce the
same.

3. Nothing in this section shall be deemed a) to affect Sections 123 and 124 of the
Indian Evidence Act or the Bankers’ Book Evidence Act or b) to apply to a
letter, postcard, telegram or other documents or any parcel or thing in the
custody of the Postal or telegraph authority.”

The document must be produced, and then, under Section 162 10 of Crpc, it will be for the Court,
after inspection of the documents, if it deems fit, to consider and decide any objection regarding
their production or admissibility.11

Under Section 126, it is not that every communication made by a person to his legal adviser is
protected from disclosure but only those communications made confidentially with a view to
obtain professional advice are privileged. It should also be remembered that the privileged extends

10
"A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court,
notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such
objection shall be decided by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters
of State, or take other evidence to enable it to determine on its admissibility. If for such purpose it is necessary to
cause any document to be translated, the Court may, if it thinks fit, direct translator to keep the contents secret,
unless the document is to be given in evidence: and, if the interpreter disobeys such direction, he shall be held to
have committed an offence under Section 166 of the Indian Penal Code."
11
Ganga Ram v. Habib Ullah (1935)58 All 364
only after the creation of pleader-client relationship and not prior to that.12 Also, communication
must be made with the lawyer in his capacity as a professional adviser13 and not as a friend14.

Considering the exception to this rule, existence of an illegal purpose will prevent any privilege
attaching to any communication. Thus, communications made with a view to carry out a fraud are
not privileged.15

The scope of Sections 126, 27 and 128 is different from that of Section 129. The former Sections
prevent a legal adviser from disclosing professional communication. Section 129 applies where a
client is interrogated, whether he is a party to a suit or not. Section 129 states that no person shall
be compelled to disclose in the Court any communication between him and his legal adviser
unless he offers himself as witness. Thus, Section 129 makes a person immune from compulsory
process. This immunity may extend to third parties, such as consultant who are recruited to help
with the preparation of the case for trial. However, once the material has got out, it should not be
kept out of Court on account of its confidential nature any more than would any other confidential
matter.16 Also, if a party becomes a witness of his own accord he shall, if the Court requires, be
made to disclose everything necessary to the true comprehension of his testimony.17

In a recent case, an unsigned and undated letter which was allegedly written by the advocate-
accused to his client-terrorist to remain absconding was held to be professional communication
and not ‘abetment’ and thus could not be used against the advocate.18 But in another case, the
Gujarat High Court held that disclosure was allowed where the client desired to obtain decree for
money on basis of forged promissory note.19

The rule is established for the protection of the client, not of the lawyer, and is founded on the
impossibility of conducting legal business without professional assistance, and on the necessity, in

12
Kalikumar Pal v. Rajkumar Pal (1931)58 Cal 1379
13
Wallace v. Jefferson 2B 452
14
Smith v. Duniell 44LJCh 189
15
O’Rourke v. Darbishire (1920) AC 581
16
Calcraft v. Guest (1898)1 QB 759
17
Munchershav Bezanji v. The new Dhurumsey S. & W. Company (188004 Bom 576
18
D. Veeraseharan v. State of Tamil Nadu 1992 Cr. L.J. 2168 (Mad)
19
Gurunanak Provisions Stores v. Dalhonumal Savanmal AIR 1994 Guj 31
order to render that assistance effectuated, of serving full and unreserved intercourse between the
two20.

20
Jones v. Great Central Railway, 1910 AC 4