Attorney-client privilege is a legal principle that protects the confidentiality of communications between a client and their attorney. This privilege allows the client to share sensitive information with their attorney without fear of that information being disclosed to others. It also allows the attorney to give legal advice to the client without being compelled to disclose that advice to others.
The privilege exists to promote the free flow of information between the client and their attorney, which is necessary for effective representation. It applies to both oral and written communications between the client and attorney and continues even after the attorney-client relationship has ended.
There are some exceptions to the attorney-client privilege, such as when the client consents to the disclosure or when the information is required by law to be disclosed. Additionally, if the client discloses information to a third party, the privilege may be waived.
What does it mean?
In India, profession communication between the attorney and client is protected under section 126 to 129 of the Evidence act. It also is protected under the Advocates Act 1961 and the Bar council of India rules. The attorneys cannot without the consent of the client-
Section 126 to 129 of the Indian Evidence Act deals with the confidentiality of communication between a client and their legal advisor. According to these sections, an attorney cannot be compelled to disclose any communication or advice given by them to their client. This privilege extends to all kinds of communication, whether written or oral, and continues even after the attorney-client relationship has ended.
The Advocates Act 1961 and the Bar Council of India rules also provide protection to attorney-client communication. The Bar Council of India Rules specify the professional conduct of advocates and prohibit them from disclosing any information about their client, except in certain circumstances like when required by law or when necessary to prevent a crime.
Overall, the confidentiality of attorney-client communication is an important principle that ensures that clients can trust their lawyers and share all relevant information without fear of that information being disclosed to others.
Section 129 of the Evidence act states that no one shall be compelled to disclose any confidential communication that has taken place between the attorney and the client to the court, unless they have offered themselves witness. In such cases, they are compelled to disclose the information that is necessary to be known in order to explain any evidence that shall be provided.
The Bar Council rules
The bar council has set up rules 7 and 15 on Advocates duty towards the client.
Rule 7 of the Bar Council of India Rules states that an advocate should not disclose the communications between the client and himself/herself, except when required by law or when permitted by the client. This means that an advocate is duty-bound to maintain the confidentiality of any communication between themselves and their client.
Rule 15 of the Bar Council of India Rules states that an advocate should not misuse or take advantage of the confidence reposed in him/her by the client. This means that an advocate should not use any information obtained from the client for personal gain or advantage.
If an advocate violates these rules, they can be subjected to disciplinary proceedings under the Advocates Act, 1961, which can result in penalties such as suspension or cancellation of their license to practice law.
Flaws in the Attorney – client privilege
The prime flaw in this case is that the entire procedure is dependent on loyalty which can be misused by either if the two parties. An attorney can be disloyal to his client and mislead to unfair trial and injustice. If the attorney is loyal towards the state, he has to be disloyal to his client.
Finally, the refusal of an attorney to be a witness in court to uphold the attorney-client privilege can sometimes be seen as an obstruction of justice. While the privilege is important, it is not an absolute right and there may be circumstances where the attorney is required to disclose information.
It’s better to refuse to be witness in the court of law to uphold the attorney client privilege. This can happen if an attorney has conflicting interests or is coerced into revealing confidential information.