Breaking The Sacrosanct Seal Of Privilege: Et Tu, Attorney?

Attorney-client privilege, like the priest-penitent confessions in Roman Catholicism, is founded on the cornerstone of confidentiality and is considered inviolable. This principle ensures that individuals can seek guidance, spiritual or legal, without fear that their personal disclosures will be exposed to public scrutiny or used against them in a court of law. In both the cases, confidentiality is maintained to foster trust and support institutional integrity. The legal system, much like the Church, recognises that such confidentiality is essential not only for the individual reassurance, but also for the effective functioning of the justice delivery system. Thus, the seal of confession and the attorney-client privilege serve as parallel constructs, each protecting the sensitive/confidential communications within their respective domains.

Attorney-client privilege, like the priest-penitent confessions in Roman Catholicism, is founded on the cornerstone of confidentiality and is considered inviolable. This principle ensures that individuals can seek guidance, spiritual or legal, without fear that their personal disclosures will be exposed to public scrutiny or used against them in a court of law. In both the cases, confidentiality is maintained to foster trust and support institutional integrity. The legal system, much like the Church, recognises that such confidentiality is essential not only for the individual reassurance, but also for the effective functioning of the justice delivery system. Thus, the seal of confession and the attorney-client privilege serve as parallel constructs, each protecting the sensitive/confidential communications within their respective domains.

Globally, the seal of confession made to the priest is subject to increasing scrutiny.

In a similar vein, attorney-client privilege in India has encountered significant challenges. Recently, some law enforcement agencies have summoned legal practitioners for representing accused individuals or for opinions rendered during the course of their professional duties. This development has sparked concern within the legal community regarding the potential erosion of a fundamental tenet that underpins the administration of justice. The privilege, enshrined in Section 132 and 134 of the Bhartiya Sakshya Adhiniyam, 2023 (“BSA”) protects confidential communications between advocates/legal advisers and their clients from disclosure in court, with this, not a mere duty of confidentiality, but a legal obligation cast on them even after the termination of the professional relationship. Notwithstanding these protections, recent high-profile investigations have led to situations where advocates and legal consultants have been compelled by investigating agencies to testify against clients or produce privileged documents, resulting in what may be described as the metaphorical "et tu, attorney" scenario.

Legal Framework and Applicability of BSA to Investigating Authorities

Under the provisions of Sections 132 and 134 of the BSA, advocates, (as also interpreters, and clerks or employees of advocates), cannot disclose client communications, documents, or advice given in the course and for the purpose of their professional service. However, this privilege does not extend (i) to communications made in furtherance of illegal purpose for committing a crime or fraud; (ii) to facts observed by advocates during their service related to crimes or frauds committed since the commencement of their service (iii) where client voluntarily agrees to disclose the communications and (iv) where the client voluntarily testifies as a witness in a proceeding before the Court, in such instances the Court may compel disclosure of those communications deemed necessary to clarify evidence provided by the witness, however, all other communications remain protected.

Scope of Attorney-Client Privilege

Communications exchanged before an advocate-client relationship is formed (i.e. formal engagement of an advocate by the client), or after it ends, are not privileged. However, any communication or document exchanged for legal advice, regardless of litigation being contemplated or pending, is protected. This includes all materials created for obtaining or providing legal advice, such as drafts and working papers, not just correspondence with legal counsel.

Lawyer-client communications intended for legal advice or legal opinions and kept confidential are privileged. To qualify, such information must remain private from the outset ; if disclosed or not maintained as confidential, privilege cannot be claimed. Voluntary revelation of these communications in court or proceedings waives privilege. Public documents, such as notices shared with opposing parties, are not confidential and the lawyer could be called upon to attest to the contents or circumstances thereof.

Privilege applies to all communications and documents made primarily for obtaining legal advice or to conduct or aid in the conduct of litigation. The Bombay High Court affirmed that privilege applies to documents created in anticipation of litigation, whether for seeking legal counsel or use in legal proceedings.

Applicability of BSA Act

The BSA Act regulates evidence admissibility in Indian courts, covering judges, magistrates, and others authorised to receive evidence but not arbitrators. The powers of investigations, inquiries, inspections, search- seizure, etc. undertaken by regulatory bodies, including departmental adjudication, do not strictly fall within the purview of ‘judicial proceedings'. These are rather in the nature of quasi-judicial proceedings so the strict rules of BSA do not apply to proceedings before such authorities, though general evidentiary principles and legal privilege, such as client confidentiality, can still be asserted before these authorities.

Regulatory bodies, such as the Directorate of Enforcement, the Department of Customs, and others are empowered to issue summons and record statements during the course of investigations. These proceedings are deemed to be judicial proceedings only for the purposes of Section 19319 of the Indian Penal Code, 1860 (corresponding to Section 229 of the Bharatiya Nyaya Sanhita, 2023) and Section 22820 of the Indian Penal Code. However, such officers are not judicial officers themselves while recording such statements.

Recent Cases

Ashwinkumar Govindbhai Prajapati v State of Gujarat

An advocate filed a bail application, resulting in his client's bail. The advocate was later summoned as a witness under Section 179 of the BSA, 2023, which he challenged unsuccessfully before the Gujarat High Court. The Supreme Court subsequently stayed the summons, echoing that the advocate was only acting as a legal counsel and not involved in the dispute either as accused or witness, emphasising thereby that such summons would undermine the autonomy of the legal profession and would constitute direct threat to the independence of the administration of justice.

In Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues

Following concerns raised over ED's summons to prominent advocates, the Advocates-on-Record Association (SCAORA) sought the Supreme Court's intervention to safeguard lawyer-client communication privilege and professional independence. The Court initiated ‘suo moto’ proceedings and will soon issue guidelines to ensure that independence of legal profession and that attorney-client privilege is not breached. This matter is reserved for judgment.

In the interim, basis objections raised by members of the legal fraternity, the ED withdrew its summons and adopted new protocols, mandating to obtain prior approval from the Director of Enforcement Directorate, for issuing summons to any advocate, clearly exhibiting the exceptions under Section 132 of the BSA, 2023.

Conclusion

The attorney-client principle is central to India's legal system, safeguarding the confidentiality of communications between clients and their counsel. The proactive stance taken by both the judiciary and regulatory body, such as the Enforcement Directorate, albeit, after backlash, demonstrates a developing legal framework that places significant emphasis on protecting lawyer-client communication privilege and ensures that advocates are not unduly compelled to disclose confidential information. As ongoing proceedings await final adjudication, it is evident that the courts are vigilant in upholding the integrity of the legal process and the essential rights of legal professionals and their clients.

The author, Namita Shetty, FClArb, is a Partner in the dispute resolution team at Cyril Amarchand Mangaldas (Mumbai Office).