Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

A Final Draft submitted for the project work undertaken 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. – 127
SEMESTER – 9th
SECTION – B

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 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
9 MISCELLANEOUS 17

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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 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 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:

1
Soli J. Sorabjee, “Lawyers as Professionals”, AIR 2002 Jour 4.
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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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:
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

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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court proceedings, are absolutely and permanently privileged from disclosure even though, in
consequence, the communications will 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 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:

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 1819
9
Id.
10
P. Ramanatha Aiyer, Legal and Professional Ethics: Legal Ethics, Duties and Privileges of a Lawyer, (3rdedn.,
Nagpur: Wadhwa and Co., 2003)
11
Clark D. Cunningham, “How to Explain Confidentiality”, 9 Clinical Law Review 579 (2003).

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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 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

12
Southwark and Vauxhall Water Company, (1978) 3 QBD 315 (CA).
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. 119
15
K. Gururaja Chari, Advocacy and Professional Ethics, (Allahbad: Wadhwa and Co. , 2000), at p. 141
16
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
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

18
126. Professional communications – No barrister, attorney, pleader or vakil shall, 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.
21
Gurunanak Provisions Stores v. Dulhonumal Savanmal and Ors., AIR 1994 Guj 31.

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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
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
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

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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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, when 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,

24
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 69 th 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
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.

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is also considered privileged if it was information connected to the general purpose of the legal
advice.30
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 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

30
Balabel v. Air India, AIR 1993 SC 1246.
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).
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.

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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 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 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

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.
37
S. 91(3), Code of Criminal Procedure, 1973
38
V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281.

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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 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

39
Kailash Rai, Legal Ethics, Accountancy for Lawyers and Bench Bar Relations, (6th edn., Allahbad: Central Law
Publications, 2005), at p. 61
40
The Council of the Institute of Chartered Accountants of India, New Delhi v. Mani S. Abraham, AIR 2000 Ker
212.
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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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
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 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.

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).
46
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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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
constitutes 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.
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

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 All Er 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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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.
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.

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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 BIBLIOGRAPHY
Articles
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.
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)

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 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
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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