“Any communication which occurs between the client and his lawyer or an attorney or legal advisor is protected and is privileged.”
This privilege of communication between the lawyer and his client exists in entire common law system. We call the professional communication between the attorney and client privileged because when a person visits a lawyer to get their legal questions answered online or otherwise, he/she disclose all the secrets and facts of the case to the lawyer. To assure the client that they can trust the lawyer because all his conversations and truth related to the case will be secured without any fear of disclosure or incrimination. Due to this confidential nature and that in the absence of this privilege, no client would have recourse to legal advice online or otherwise.
In simple words, in the interest of justice had there been no privilege communication protection -a person would not venture to consult any legally skilled person i.e. lawyer, nor would ever tell his legal counsel all the truths of his case.
In India, the privileged communication is awarded protection under Sections 126 to 129, Indian Evidence Act, 1872. Precisely, Sections 126 &128narrates those situations under which the legal adviser can give evidence of his professional communication with the client. Section 127 provides that interpreters, clerks or servants of the legal adviser are restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the confidential communication which has taken place between him and his client.Besides to bring more credibility and sanction to the mentioned provision of Indian Evidence Act, 1872, The Bar Council of India Rules (“BCIR”) mandates certain guidelines for all advocates and legal advisors to maintain legal professional conduct and etiquette. Thus, Part VI, Chapter II, Section II, Rule 17 of BCIR says that –
“An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act”.
When an Attorney-Client Communication not Privileged?
The confidentiality and protection of such communication can be waived off under following few circumstances –
• A lawyer can disclose any part of such communication only after the client has expressly consented to disclose such communication.
• Any communication done in furtherance of any illegal purpose i.e. an attorney must disclose information learned from his client that may prevent somebody’s death or serious injury. That is to say, any facts which narrate of any illegal act in future recourse.
• Any such communication where the person who holds joint interest with the client in the same subject matter. For example: between shareholders of a company or between partners of a firm.