Obligations of An Advocate Regarding Protection of Professional Communication
Sections 126 to l29 deal with the privilege that is attached to Professional Communications between the legal advisors and their clients. Section 126 and 128 mention the circumstances under which the legal advisor can give evidence of such professional communication.
Section 127 provides that interpreters, clerks or servant of legal advisors are restrained from disseminating any privileged matter. Similarly section 129 says that when a legal advisor can be compelled to disclose the confidential communication which has taken place between him his client.
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Under the Section no Barrister, Attorney, Pleader or Vakil shall any time the permitted to:
- disclose
[a] any communication made to him by or on behalf of his client
[b] any advice given by him to his client in the course and for the purpose of his engagement. - to state the contends or conditions of any documents with which he has been acquainted in the course and for the purpose of his engagement.
The section does not protect from disclose:
- Any communication made in furtherance of any legal purpose
- Any fact observed in the course of employment share in that any crime or fraud has been committed since the commencement of relationship between and the client.
This section is based upon the principle that if communications to a legal adviser were not privilege, a man would be deterred from fully disclosing his case so as to obtain proper professional aid in a matter in which he is likely to be thrown into litigation.
The section not only protects the legal advisor from the disclosing communications made to him by his client when interrogated as witness but he is not permitted to do so even if he is willing to give evidence unless with the express consent or his client.
Section 126 has been enacted for the protection of client and not of the lawyer and it is founded on the impermissibility of conducting legal business without professional assistance and on the necessity of securing full and in deserve intercourse between the two in order to render that assistance effectual. In Ayasha B v/s Peer Khan Sahib AIR (1954) Madras 741
The privilege of a client and not of the legal advisor. The letter is therefore bound to claim the privilege unless it is waived by his client express the under Section 126 or impliedly under Section 128 of Indian Evidence Act, 1872. For e.g. by examining the legal advisor as to the privileged communication.
In wheeler v/s. Le Merchant analyzed legal professional privilege as a manifestation of they principle protecting confidentiality distinguishing for this purpose between communication with a lawyer which do enjoy this protection and communication with a doctor priest or confident which do not. The protection is restricted to the obtaining of legal advice and assistance and all things reasonably necessary in the shape of communication to the legal advisors are protected from production of discovery in order that the legal advice may be obtained safely and sufficiently.
In Anderson Vv/s. Bank of British Columbia it is noted:
The object and meaning of the Rule is this, that as by reason of the complicity difficulty of our law, litigation can only be properly conducted by a professional man, it is absolutely necessary that a man in order to prosecute his rites of to defame himself from an in proper claim should have resource to the assistance of professional lawyer and being so absolutely necessarily.
He should be able to place unrestricted and unbound confidence in the professional agent and that the communications he so makes to him should be kept secret unless with his consent that he should be enabled properly to conduct with his litigation. That is the meaning of the Rule.
