Legal Privilege & Professional Secrecy 2021 (India Chapter)

DOMESTIC LEGISLATION

Attorney-client communications doctrine

1 Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that protect communications between an attorney and a client from disclosure.

Professional communication between an attorney and a client is accorded protection under the Indian Evidence Act 1872 (the Evidence Act), the Advocates Act 1961 (the Advocates Act) and the Bar Council of India Rules (the BCI Rules). This protection is a rule of evidence (as opposed to other statutory protection) and is subject to certain limitations.

Sections 126 to 129 of the Evidence Act are a codification of the principles of common law on professional communications between attorneys and clients. Any person who seeks advice from a practising advocate, registered under the Advocates Act, would have the benefit of the attorney-client privilege and his or her communication would be protected. Attorneys cannot, without the express consent of the client:

•   disclose any communication made during the course of or for the purpose of his or her employment as such attorney, by or on behalf of his or her client;
•   state the contents or condition of any document with which he or she has become acquainted in the course of and for the purpose of his or her professional employment; or
•  disclose any advice given by him or her to his or her client in the course and for the purpose of such employment.

There are certain limitations to privilege and the law does not protect the following from disclosure:

•  disclosures made with the client’s express consent;
•  any such communication made in furtherance of any illegal purpose; or
• any fact observed by any attorney in the course of his or her employment, showing that any crime or fraud has been committed since the commencement of his or her employment.

The fact that the attention of the attorney was or was not directed to such fact by or on behalf of his or her client is not material in this regard. Further, under section 129 of the Evidence Act, no one shall be compelled to disclose to the court any confidential communication that has taken place between him or her and his or her attorney, unless they have offered themselves as a witness, in which case they may be compelled to disclose any communication as may appear to the court necessary to be known to explain any evidence that they have given, but no other.

Communications between an attorney and client are privileged even if they contain information from third parties. The prohibition on disclosure of confidential information also extends to any interpreters,clerks or servants of the attorney. While the attorney-client privilege continues even after the employment has ceased, there is no privilege to the communications made before the creation of an attorney-client relationship (Kallkumar Pal v Rajkumar Pal 1931 (58) Cal 1379). The prohibitions on disclosure of attorney-client communications are further bolstered by the provisions of the BCI Rules enacted under the Advocates Act, which govern the conduct of advocates in India.

The BCI Rules stipulate certain standards of professional conduct and etiquette for all attorneys. These provide that ‘An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by section 126 of the Evidence Act’, thus reiterating the spirit of attorney client privilege (Rule 17, Chapter II, Part VI). Further, Rules 7 and 15 of the BCI Rules on An Advocate’s Duty Towards the Client provides as follows:

Rule 7: Not disclose the communications between client and himself: An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. Fie also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates section 126 of the Indian Evidence Act 1872.

Rule 15: An advocate should not misuse or takes advantage of the confidence reposed in him by his client.

A breach of the above Rules would subject an advocate to disciplinary proceedings. Given the above, privileged communication between an attorney and a client are not admissible as evidence. Since the law on privilege is governed by the Evidence Act, one (possibly unintended) consequence is the argument that attorney-client communications are strictly not protected from law enforcement agencies in the course of investigations. That said, any privileged material, if produced, may not be admissible as evidence in court proceedings.

In-house and outside counsel

2    Describe any relevant differences in your jurisdiction between the status of private practitioners and in-house counsel, in terms of protections for attorney-client communications.

The concept of attorney-client privilege concerning the position of an in-house counsel is not free from doubt. This question has been the subject matter of judicial interpretation. This is because in-house counsel are not considered ‘advocates’ under the Advocates Act; however, the position regarding attorney-client privilege is not necessarily impacted by the same.

Section 2(a) of the Advocates Act defines an advocate as an individual whose name is entered in any roll under the Advocates Act, and section 29 of the Advocates Act states that only an advocate is entitled to practise the profession of law in India (which includes appearing and/or practising in the courts, and practice of law outside the court by giving legal advice, drafting or drawing legal documents or advising clients on non-contentious matters). Rule 49 of the BCI Rules states that an advocate shall not be a full-time salaried employee of any person government, firm, corporation or concern, as long as he or she continues to practise and shall, on taking up any such employment, disclose the fact to the Bar Council on whose roll his or her name appears, and shall thereupon cease to practise as an advocate so long as he or she continues in such employment. However, an exception is made in such cases of law officers of the central government, any state government or of any public corporation or of body constituted by statute despite being a full-time salaried employee, if such law officer is required to act or plead in court on behalf of others.

It is therefore often argued that an in-house lawyer (ie, one who draws a salary) cannot practise as an advocate until such time that he or she is in full-time employment [Sushma Suri v Government of National Capital Territory of Delhi (1999) 1 SCC 330). The Supreme Court of India clarified this question of law in Satish Kumar Sharma v Bar Council of Himachal Pradesh (2001) 2 SCC 365. On whether a salaried employee can be an ‘advocate’ under the Advocates Act, the court held:

The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression advocate as one who is actually practising before courts which expression would include even those who are law officers appointed as such by the Government or body corporate.

However, the distinction between lawyers who are engaged to act or plead as advocates and lawyers who are employees does not materially alter the position of law in respect of attorney-client privilege. This has been clarified by the Bombay High Court in the cases of Municipal Corporation of Greater Bombay v Vijay Metal Works and Larsen & Toubro Ltd v Prime Displays (P) Ltd.
In Municipal Corporation of Greater Bombay v Vijay Metal Works, AIR 1982 Bom 6, the Bombay High Court, while considering whether privilege would extend to communications between an in-house counsel and the client, has held that a paid or salaried employee who advises his or her employer, on all questions of law and relating to litigation, must get the same protection of the law and therefore any such communication made in confidence by his or her employer to him or her to seek legal advice or vice versa should get the protection of sections 126 and 129 of the Evidence Act. The Court further distinguished that such protection may not extend to the work undertaken by an in-house legal counsel for his or her employer that is in another capacity (such as work of an executive nature). Communications exchanged in any other capacity (not legal) would not be subject to legal professional privilege under sections 126 to 129 of the Evidence Act.

In Larsen & Toubro Ltd v Prime Displays (P) Ltd [2003] 114 Comp Cas 141 (Bom), the Bombay High Court observed that:

It is, thus, clear that, even according to the applicant, in order that an advice given by an internal legal department of the applicant becomes entitled to protection, under section 129, that advice must be given by a person who is qualified, to give legal advice. This observation appears to indicate that where the in-house counsel would, save for his or her employment with the concerned litigant, be otherwise qualified to give legal advice, then privilege under sections 126 and 129 of the Evidence Act would attach itself to the advice given by that in-house counsel. The Court in Larsen & Toubro, however,
did not make any finding on this issue, owing to a lack of pleadings on the issue. In Larsen & Toubro, the Court also permitted a claim of privilege in the case of certain documents, which included communications between the company and in-house counsel, but solely on the ground that the same had been created in anticipation of litigation (which the court held to be otherwise covered by attorney-client privilege).

Work-product doctrine

3   Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that provide protection from disclosure of tangible material created in anticipation of litigation.

All work-products created (tangible or intangible) and communication exchanged between a client and attorney in anticipation of litigation will be privileged communication). This includes communication to:

• obtain advice for the litigation;
• obtain or collect evidence to be used in the litigation; and
• obtain information that will lead to such evidence, drafts of notices, pleadings and so forth exchanged between the attorney and the client.

Information called for by the client and provided by an employee or a third-party agent, on the request of, and for submission to, the attorney may also be protected (Woolley v North London Railway (1868-1869) LR 4 CP 602).

In D Veerasekaran v State of TN (1992 CriLJ 2168 (Mad), an unsigned and undated letter allegedly written by an advocate, advising his client (who was charged with terror offences) was cited as evidence of the advocate having abetted the terror charges. The court observed that even if the said letter was written by the advocate to a client, it would be treated as a professional communication and could not be used against the advocate.

However, communication between the employees of the client in the ordinary course of business, which may have utility for anticipated litigation, is not protected. Accordingly, there is no protection accorded to the following:

• for statements made by an employee regarding the subject matter of certain suit proceedings that were not to be submitted to their attorney (The Central India Spinning Weaving and Manufacturing Co Ltd v G I P Railway Co, AIR 1927 Bom 367); and
• letters written by one employee to another regarding information that could potentially become useful to their attorney (Bipro Doss Dey v Secretary of State for India in Council (1885) ILR 11 Cal 655).

Recent case law

4   Identify and summarise recent landmark decisions involving attorney-client communications and work-product.

In Vijay Metal Works, the Bombay High Court held that a salaried employee who advises his or her employer on legal questions would be afforded the same privileges and protections under sections 126 and 129 of the Evidence Act as afforded to practising advocates.

In Larsen & Toubro, a petition was filed for winding up filed by the respondents against the petitioner company. The Bombay High Court in this regard held that section 126 of the Evidence Act protect the documents prepared by the client in anticipation of litigation either for seeking legal advice or for using them in that litigation. If an associate or advocate works for another advocate and his clients, he or she owes an obligation not only to maintain the confidentiality between the client and his or her advocate but also not to surreptitiously take away what is the final product of the effort put in to which he or she may also be a party. The protection under section 126 of the Evidence Act would apply to an advocate and his clients and any misuse of the same could make him or her liable if it is founded on confidential drafts being taken away by the associate or advocate and being misutilised (Diljeet Titus & Ors V Alfred A Adebare & Ors 130 (2006] DLT 330).

The Right to Information Act 2005 (the RTI Act) enables Indian citizens to access information held by public authorities. This has raised interesting questions about attorney-client privilege as grounds for refusing to disclose professedly public information in the hands of public authorities. In Mukesh Agarwal v Public Information Officer, Reserve Bank of India [2012] CIC 11210, the Central Information Commission (CIC) held that while there may be a fiduciary relationship in respect of communication from the client to his or her attorney, there is no fiduciary relationship in respect of communication from the attorney to the client when the client is a public body with public responsibility under the RTI Act. Section 8.1(e) of the RTI Act excludes disclosure of information available to a person in his or her fiduciary relationship unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. The CIC, in this case, held that there was a larger public interest warranting disclosure and accordingly ruled in favour of the citizen seeking information.

The same principle was applied by the CIC in 2015, in Alok Srivastava v CPIO, English & Foreign Language University, where the court held that the client (being a public university with an aforementioned public responsibility) was directed to disclose material information as there was a public interest that outweighed the protected interest. These CIC cases show that traditional attorney-client privilege does not apply to governmental entities if the exception provided in section 8.1(e) of the RTI Act applies.

In The Superintendent, High Court v The Registrar, Tamil Nadu Information Commission and M Sivaraj, 2010 (5) CTC 238, it was held that even though the office of the public prosecutor is a public authority, the RTI Act only requires the public prosecutor to furnish such information, which is available to him or her and capable of being furnished, subject to section 8(1)(e) of the RTI Act. Here, the public prosecutor, bound by attorney-client privilege to not disclose information provided to it by the state of Tamil Nadu, directed a citizen seeking information to approach the state of Tamil Nadu directly. The Madras High Court, which was approached in this connection, held that:

Instead of asking the [Public Prosecutor], who holds such information in the capacity of counsel, the petitioner is very well entitled to approach the client, ie, the State of Tamil Nadu directly for getting such information.

In Cecilia Fernandes v State represented by the Director General of Police Goa and Anr, Criminal Miscellaneous Application No. 9 of 2005, the Bombay High Court held that the right to consult a legal practitioner under article 22(1) of the Constitution of India could only be exercised meaningfully in confidence. Thus, a police officer, while entitled to stay within a certain distance of an accused, cannot insist on being within hearing distance to prevent an accused from instructing his or her lawyer in confidence.

ATTORNEY-CLIENT COMMUNICATIONS

Elements

5   Describe the elements necessary to confer protection over attorney-client communications.

As per section 126 of the Indian Evidence Act 1872 (the Evidence Act), the communication between an attorney and their client may be in any form and nature, verbal or documentary. It even covers facts observed by an attorney in the course and purpose of the attorney-client relationship. The elements necessary to confer protection involve one of the following:

• communication between a client and their attorney;
• documents exchanged between a client and an attorney, the contents and condition of which the attorney should be acquainted with; or
• any advice from the attorney to the client.

To constitute an attorney-client communication, the above information must have been provided in the course of, and for, the professional engagement with the attorney or in anticipation of litigation, and cannot just be general information. The communication between the attorney and the client should not be in furtherance of any illegal purpose, or such information should not relate to the commission of any fraud or crime after the commencement of engagement with the attorney.

Whether the attention of the attorney was specifically directed by the client (or someone on behalf of the client) to a particular fact is not relevant. Section 129 of the Evidence Act protects a client from being compelled to disclose any ‘confidential communication’ with his or her legal professional adviser. The scope of attorney-client privilege under this section extends to all communications, oral or written.

Based on observations in case laws on this issue, it appears that for any communication to qualify as being privileged under section 129, two tests must be satisfied , namely:

•   whether the person is a professional legal adviser; and
• if yes, whether the communication is confidential and whether it is concerning any legal issue or litigation, or concerning legal advice  sought by the client from the professional legal adviser.

To claim attorney-client privilege, the communication must be of a private and confidential nature and must have been provided sub sigillo confessionis (ie, in confidence). Any communication made between an attorney and their client in presence of a third party Where the communication is made in the presence of third parties, the court will examine whether the person intended it to be confidential or not. The position occupied by the third party and whether the third party had the same interests is relevant.

In Bhagwani Choithran v Deoram, AIR 1933 Sind 47, a client made a statement to his attorney in the presence of the client s friends. The court held that since the friends occupied more or less the same position as the client, and had the same interests, privilege was not destroyed; however, the court held that it could be evidence that communication was not being made in confidence. The court underscored that section 126 of the Evidence Act protects only such communications as are made to the legal adviser in confidence, in the course and for employment.

In Memon Hajee v Moulvi Abdul (1878) 3 Bom 91, the defendants, in the presence and within the hearing of the plaintiff, had communicated information to their attorney who was at the relevant time also the attorney for the plaintiff. This information was held to be not confidential in light of the conduct of the defendants and given that the statements were made to the attorney not exclusively in his character as the attorney for the defendants but also as the attorney for the plaintiffs.

Exclusions

6 Describe any settings in which the protections for attorney-client communications are not recognised.

The key exclusions where the provisions of attorney-client privilege are not recognised fare set out under section 126 of the Evidence Act, namely:

•  disclosures made with the client’s express consent;
•  any such communication made in furtherance of any illegal purpose; or
• any fact observed by any attorney in the course of his or her employment, showing that any crime or fraud has been committed since the commencement of his or her employment.

The fact that the attention of the attorney was or was not directed to such fact by or on behalf of his or her client is not material in this regard.

As per section 129 of the Evidence Act, nobody is compelled to disclose any communication to the court, which has taken place between a client and his or her attorney, unless the client offers him or herself as a witness, in which case he or she may be compelled to disclose any such communication as may appear to the court necessary to be known to explain any evidence that he or she has given, but no other.

Further, under section 91 of the [Indian) Code of Criminal Procedure, a court can compel the production of any document, and the person in whose possession it is, if the document is necessary or desirable for any inquiry, trial or another proceeding. The court in Chandubhai v State, AIR 1962 Guj 290, held that the protection against production or disclosure, however, does not extend to any original document that might have come into the possession of an attorney from his or her client. The attorney is but the agent of the client to hold the document and if the client is compellable to produce the document, there is no reason either on principle or authority on which the attorney can refuse to produce the document. The document handed over to the attorney by the client cannot be said to be privileged under section 126 of the Evidence Act unless the document contains any communication made to the attorney by the client in the course and for the engagement as an attorney. The letter of which production was sought in the present case from the attorney of the accused was obviously not a letter in respect of which any privilege could be claimed by the attorney of the accused under section 126 of the Evidence Act.

Who holds the protection

7 In your jurisdiction, do the protections for attorney-client  communications belong to the client, or is secrecy a duty incumbent on the attorney?

The protections for attorney-client communications belong to the client – section 126 of the Evidence Act prohibits an attorney from disclosing attorney-client communications, without the express consent of the client. The client may release the attorney from his or her obligation  to maintain secrecy; however, in the absence of express consent, the attorney must maintain secrecy. If the attorney fails in his or her duty and discloses confidential information, that information may be held inadmissible ( Bakaulla Mollah v Debiruddi Mollah [1911-1912) 16 CWN 742 (Cal)).

Underlying facts in the communication

8   To what extent are the facts communicated between an attorney and a client protected, as opposed to the attorney client communication itself?

The facts between an attorney and a client are privileged as far as  they are exchanged after the attorney’s engagement and subject to the exceptions set out above (eg, facts not concerning fraud or for any illegal purpose, etc).

Agents

9   In what circumstances do communications with agents of the attorney or agents of the client fall within the scope of the protections for attorney-client communications?

Section 126 of the Evidence Act includes communications made to the attorney ‘on behalf of the client within the scope of the protection. This will arguably extend protection to communications made by the agent of the client to the attorney on the client’s behalf concerning legal advice or in anticipation of legal proceedings, subject to the limitations and exceptions contained above. Section 127 of the Evidence Act extends protection under section 126 to all interpreters and clerks or servants of the attorney.

Corporations claiming protection

10 Can a corporation avail itself of the protections for attorney client communications? Who controls the protections on behalf of the corporation?

Yes, the protection granted to ‘client’, is not restricted to individuals and covers corporations as well. Communication between a corporation (through its agents) and external attorney concerning legal advice or in anticipation of litigation is considered to be privileged communication under sections 126 to 129 of the Evidence Act, subject to the limitations and exceptions contained above.

Under Indian law, the board of directors of a corporation are understood to be in control of the corporation. In the case of protection of attorney-client communications, the board of directors may be understood to be in control. The board of directors can delegate this role to one or more of their authorised representatives.

Communications between employees and outside counsel

11  Do the protections for attorney-client communications  extend to communications between employees and outside counsel?

See ‘Agents – section 126 of the Evidence Act includes communications made to the attorney ‘on behalf of the client within the scope of the protection, subject to the limitations and exceptions contained above.

Communications between employees and in-house counsel

12  Do the protections for attorney-client communications extend to communications between employees and in-house counsel?

Yes, the protection for attorney-client communications will extend to communications concerning legal advice or in anticipation of litigation between employees (as agents of the corporation) and in-house counsel. Such protection is not absolute and subject to the limitations and exceptions contained above. However, this protection may not extend to the work undertaken by an in-house legal counsel for his or her employer that is undertaken in another capacity (eg, work of an executive nature). Communications exchanged in any other capacity (not legal) would not be subject to legal professional privilege under sections 126 to 129 of the Evidence Act (Vijay Metal Works).

Communications between company counsel and ex-employees

13    To what degree do the protections for attorney-client communications extend to communications between counsel for the company and former employees?

The ceasing of employment of the employees does not take away privilege that was created when the employment of the employee was subsisting.

Who may waive protection

14     Who may waive the protections for attorney-client communications?

The privilege accorded under sections 126 to 129 of the Evidence Act can only be waived by the client.

Actions constituting waiver

15   What actions constitute waiver of the protections for attorney-client communications?

Under section 126 of the Evidence Act, a client is required to expressly consent to the waiver of privilege. This need not be in writing necessarily and could be inferred from the facts and circumstances. Further, under section 128, if a client calls his or her attorney as a witness and, in the course of an examination, asks questions that specifically require disclosure of attorney-client privileged information, then such client is understood to have waived privilege.

Accidental disclosure

16   Does accidental disclosure of attorney-client privileged materials waive the privilege?

Waiver of privilege under section 126 of the Evidence Act occurs only when the client expressly consents to it, or in the case of section 128, consents to it by implication. While there is no judicial pronouncement by the courts of India on this issue, considering any waiver must be deliberate (indicating consent), accidental disclosure may not be considered as a waiver of privilege.

Sharing communications among employees

17    Can attorney-client communications be shared among employees of an entity, without waiving the protections? How?

While confidential communications between principal and agent, even if relating to matters in a suit (or other litigation advice or proceedings) are not privileged, attorney-client communications are privileged correspondence. Only the client entity can waive such privilege. Therefore, sharing the attorney-client communication among employees of a client entity does not waive protection.

Exceptions

18  Describe your jurisdiction’s main exceptions to the protections for attorney-client communications.
See ‘Exclusions’.

Litigation proceedings overriding the protection

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

Under section 91 of the Code of Criminal Procedure, a court can compel the production of any document, and the person in whose possession it is, if the document is necessary or desirable for any inquiry, trial or another proceeding.
The court in Chandubhai held that the protection against production or disclosure, however, does not extend to any original document that might have come into the possession of an attorney from his or her client. The attorney, when holding a document on behalf of a client, is acting as the agent of the client, and if the client is compellable to produce the document, there is no reason based on principle or authority on which the attorney can refuse to produce the document.

The document handed over to the attorney by the client cannot be said to be privileged under section 120 of the Evidence Act unless the document contains any communication made to the attorney by the client in the course and for the engagement as an attorney. The letter requested in Chandubhai from the attorney of the accused was obviously not a letter in respect of which any privilege could have been claimed by the attorney of the accused under section 126 of the Evidence Act.

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

Recognition of foreign protection

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

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

While not strictly linked to foreign protections, in 2018, the Supreme Court of India in Bar Council of India v AK Balaji clarified that while foreign lawyers are not entitled to practice the profession of law in India, they may ‘fly in and fly out’ on ‘casual’ visits to give legal advice on foreign law to their clients. They may also conduct or participate in international commercial arbitrations, in which case they will be governed by the code of conduct applicable to Indian lawyers. This could arguably include both the Advocates Act 1961, as well as the Bar Council of India rules on attorney-client privilege. The Union of India and the Bar Council of India have been granted liberty to frame additional rules in respect of the practice of law by foreign lawyers in India. It remains to be seen if these rules, when framed, would specifically extend privilege to foreign lawyers.

Best practice to maintain protection

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

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

WORK-PRODUCT

Elements

22  Describe the elements necessary to confer protection over work-product.

Indian law follows the English position concerning work-product. The work-product must be prepared by counsel or at the request of counsel in anticipation of litigation to confer protection.

Exclusions

23   Describe any settings in which the protections for work product are not recognised.

See ‘Work-product doctrine and ‘Exclusions’.

Who holds the protection

24  Who holds the protections for work-product?
See ‘Who holds the protection’.

Types of work-product

25    Is greater protection given to certain types of work-product?

No, different levels of protection are not granted to work-product depending on their nature. If the elements necessary to confer protection over work-product are satisfied, the work-product will be protected.

In-house counsel work-product

26   Is work-product created by, or at the direction of, in-house counsel protected?

Yes, work-product created by or at the direction of in-house counsel in anticipation of litigation will be protected. However, such protection may not extend to the work undertaken by an in-house legal counsel for his or her employer that is in another capacity (eg, work of an executive nature).

Work-product of agents

27   In what circumstances do materials created by others, at the direction of an attorney or at the direction of a client, fall within the scope of the protections for work-product?
See ‘Agents’

Third parties overcoming the protection

28    Can a third party overcome the protections for work-product? How?

No, protection for work-product can only be overcome when the client waives privilege; a third party cannot overcome the protections.

Who may waive work-product protection

29    Who may waive the protections for work-product?
See ‘Who may waive protection’.

Actions constituting waiver

30     What actions constitute waiver of the protections for work product?
See ‘Actions constituting waiver.

Client access to attorney files

31 May clients demand their attorney’s files relating to their representation? Does that waive the protections for work product?

Yes, clients may demand their attorney s files relating to their representation. The mere demand for files will not amount to waiver, as it does not amount to express consent on the part of the clients, to release the attorney from the duty of privilege.

Accidental disclosure of work-product

32   Does accidental disclosure of work-product protected materials waive the protection?
See ‘Accidental Disclosure’.

Exceptions

33    Describe your jurisdiction s main exceptions to the protections for work-product.
See ‘Exclusions’

Litigation proceedings overriding the protections

34   Can the protections for work-product be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?
See ‘Litigation proceedings overriding the protections’

Recognition of foreign protection

35 In what circumstances are foreign protections for work product recognised in your jurisdiction?
See ‘Recognition of foreign protection’

OTHER ISSUES

Who determines what is protected

36 Who determines whether attorney-client communications or work-product are protected from disclosure?

Whether communications or work-products are protected under attorney-client privilege is a determination made by the courts in India. In civil proceedings, under the Code of Civil Procedure, when an opposite party makes an application for discovery, a party can resist production on the grounds of attorney-client privilege. The civil court is entitled to decide whether the documents or communications in question are privileged or not.

If a court issues a summons in a criminal proceeding under section 91 of the Code of Criminal Procedure, then attorney-client privilege over documents or communications cannot prevent a court from examining the same. It cannot be argued that the section 91 order is illegal simply because it overrides the privilege conferred under section 126 of the Indian Evidence Act 1872 (the Evidence Act). The power to issue a notice under section 91 is not limited by section 126. The court in the appropriate cases can make an order under section 91 that would override the provisions of section 126 of the Evidence Act.

The issuance of summons is a discretion exercised by the court and the possibility of the court not to make an order that violates the privilege conferred under section 126, in the exercise of its discretion, cannot be ruled out.

Common Interest

37   Can attorney-client communications or work-product be shared among clients with a common interest who are represented by separate attorneys, without waiving the protections? How may the protections be preserved or
waived?

Section 126 of the Evidence Act does not contemplate sharing of attorney-client communications or work-product among persons with a common interest without waiving protections. As per the language of section 126, a client may waive privilege entirely or not at all.

Limited waiver

38  Can attorney-client communications or work-product be disclosed to government authorities without waiving the protections? How?

Sections 126 to 129 of the Evidence Act do not contemplate limited waiver. As per the language of section 126, a client may waive privilege entirely or not at all. However, where the disclosure is forced by a government authority (eg, as a part of documents seized), such disclosure may be attempted to be made without waiving protections.

India

Other privileges or protections

39   Are there other recognised privileges or protections in your jurisdiction that permit attorneys and clients to maintain the confidentiality of communications or work-product?

Other than what is provided in sections 126 to 129 of the Evidence Act and Rule 17, Chapter II, Part VI of Bar Council of India Rules, there are no formal recognised privileges or protections. Attorneys and clients may in their contract enter into arrangements to maintain the confidentiality of communications or work-product. This will be capable of protection under (Indian) contract law.

UPDATE AND TRENDS

Proposals and developments

40  Are there any other current developments or trends that should be noted?

With the increasing sophistication of offences and the pressure on investigating agencies to find evidence, investigating agencies are also testing
the boundaries of attorney-client privilege (and, in some instances, successfully so). As per media reports, a law firm was recently asked by investigating agencies to hand over documents on a fraud allegedly perpetrated by an individual who had left India, since the documents available with the law firm were not covered by attorney-client privilege. Similarly, in connection with the investigation into a failure of a large conglomerate with financial and other businesses, with the consent  of the new management, investigating agencies sought details of past advice provided by multiple law firms to the past management.

Coronavirus

41 What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?

Besides waiving various procedural compliances under certain laws, the Indian regulators have, inter alia, allowed companies to hold meetings through video conferences, to use digital signatures and to contribute towards awareness programmes and research related to covid-19 as part of their corporate social responsibility obligations. Further, the government rolled out various relief packages to address the ill-effects of lockdown on the economy and those affected. The government has also undertaken various measures to improve the ease of doing business in India. Clients would need to evaluate these in light of their specific circumstances.

Authors:

Aditya Vikram Bhat, Senior Partner
Prerak Ved, Partner
Abhay Raj Singh Bundela, Associate

Published In:Law Business Research, 2021
Date: September 17, 2021