The Legal Arc Volume 1 Issue 1 Articles
Tithi Neogi is a penultimate year student at the KIIT School of Law, Bhubaneswar. She is an avid reader and likes to keep herself abreast with the latest news of the legal and the business world.
Chief Justice Warren Burger once said, “Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”
It is often said that one must never lie to one’s doctor and lawyer. However, for such candour to exist in a legally recognised relationship such as that of a lawyer and his client, there must be complete privacy in which the client can feel mentally secure to open up completely before his lawyer or any such service provider. No individual can speak of his problems in the fear that his communication with the other person may subsequently be revealed before a court. In any criminal case, any communication relevant to the fact in issue might qualify as evidence to be produced before the court. However, when two people enter into a legally recognised relationship, the communication that takes place between them is protected, i.e. they cannot be forced to divulge the details of such communication before the court. Such communication is called privileged communication.
Meaning of Privileged Communication
William Theobald defines privileged communication as “a communication either in words or writing, made on such an occasion as takes it out of the ordinary law relating to slander or libel, and exempts the party making it from an action, unless malice instigated the communication.”
Justice Bayley had the following observation regarding privileged communication- “Under certain circumstances, words which would otherwise be actionable, are prima facie excusable by the occasion; these, however, are excepted cases.” Further, in Wright v. Woodgate, Baron Parke defined it as a communication “made on such an occasion as rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact; that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made.”
In Wolfle v. United States, it was held that in order to qualify as privileged communication, the utterance must neither be overheard by a third party, nor the communication must get into the hands of a third party.
A simple understanding of the phrase ‘privileged communication’ may be had from the Legal Guide on Privileged Communications issued by the State of Connecticut Judicial Branch, which defines privilege as “a legal rule that protects communications within certain relationships from compelled disclosure in a court proceeding.”
In India, Sections 126-129 of the Indian Evidence Act deal with privileged communication connected to the relationship between an attorney and her/his client. Further, the Bar Council of India Rules also stipulate that an advocate shall not breach Section 126 of the Indian Evidence Act, for breach entails punishment.
Categories of Privileged Communication
Communications between an attorney and a client are privileged and not required to be disclosed before a court. Husbands and wives also enjoy the right to privileged communication in the sense that they are not needed to testify against each other. Physicians and their patients in several jurisdictions enjoy protection under privileged communication, as doctors and their patients are entwined in a fiduciary relationship, i.e. a relationship based on trust. The ground for such relationship would be broken if a doctor is forced to reveal the communication between him and his patient. Yet, in certain circumstances, doctors may be required to disclose certain information, if it is determined that the right of the defendant to receive a fair trial outweighs the patient’s right to confidentiality. Some jurisdictions allow members of the clergy the ‘priest-penitent privilege’- granting them limited rights to refuse to testify on matters communicated to them in confidence. Some jurisdictions accord reporters a limited right of privileged communication over the source of their information, but they can be ordered to divulge such source, if the circumstances require so. The same happened in Branzburg v. Hayes, in which the U.S. Supreme Court rejected a news reporter’s claim of confidentiality.
Waiver of Privilege
Sections 126 to 129 of the Indian Evidence Act provide for the protection of the client. Hence, protection accorded under privileged communication can be waived away only by the client. Section 126 of the Act requires the express consent of the client for the waiver of privilege. Moreover, under Section 128, mere summoning of attorney by his client as witness before the court does not amount to waiver of privilege; however, if during examination, the attorney is asked specific questions the answers to which would require the disclosure of privileged attorney-client communication, then the client will be implied to have waived away his protection under privileged communication. Merely testifying before the court that one consulted an attorney or went to see a doctor does not amount to waiver of privilege if no details as to specific communication were disclosed.
Exceptions to the attorney-client privilege under Section 126 include communication made in furtherance of any illegal purpose, and any fact observed by an attorney in the course of his or her employment that shows a crime or fraud has been committed since the start of his or her employment.
The scope of a waiver extends to related communications on the same subject if two communications should for reasons of fairness be considered together, in a situation where a part of a privileged communication is intentionally disclosed in a court proceeding.
Further, if a privilege-holder fails to assert the privilege despite being present in court, or fails to object to a discovery request, it amounts to a waiver. Thus, a client who does not object to disclosure gives his implied consent to disclosure.
In order for privilege to be waived, the disclosure must reveal a significant portion of the privileged communication. Thus, a client discussing with outsiders the same facts that she discussed with her lawyer would not have waived her privilege.
Confidentiality and Privileged Communication
It was held in Hill v. Hill that “communications made to an attorney for the purpose of being conveyed by him to others are stripped of the idea of a confidential disclosure and therefore, are not privileged.” Thus, courts will hold privileged communication to be waived if there is no confidentiality. Where there is no confidentiality, there can be no privilege even if there is a privilege statute. In support of this statement, Wigmore, a stalwart of Evidence law, quoted Lord Eldon- “the moment confidence ceases, privilege ceases. This much is universally conceded.”
Confidentiality refers to the ethical duty of the professional not to disclose information learnt from the client to any other person or organization without the consent of the client or under proper legal compulsion. Moreover, “the duty to keep matters confidential is governed by ethics. The right to refuse to disclose them is governed by law.” In Indian law, Article 21 of the Constitution of India guarantees the right to life and personal liberty, of which right to privacy is a part. The right to privacy is safeguarded by the protective shield of privileged communication over any confidential communication. In the case of Vishal Kaushik v. Family Court, it was held that if the conversation between two spouses is recorded by one of the spouses without the knowledge of the other spouse, then such evidence will not be admissible before a court, and will amount to breach of privacy.
Thus, confidentiality is an ethical duty of a professional, upon the violation of which there is a sanction by law (disciplinary action). Legal privilege (that of privileged communication) on the other hand, is governed by an evidentiary rule protecting confidential communications from disclosure during litigation or other proceedings. Legal privilege is held by the client, and it can be waived by the client. Confidentiality cannot be waived away, without some form of disciplinary action, for doing so violates the law.
Role of Privileged Communication in Litigation
Litigation privilege applies in a situation where a prospect of litigation or arbitration is contemplated. The chance of entering into litigation does not have to be more than 50 percent. Even when litigation is set to be contemplated, the dominant purpose for the communication must be for use in litigation. Even if litigation is in near sight at the time of creation of that document, litigation privilege will not be available unless the document was created for the dominant purpose of that litigation. In Waugh v. British Railways Board, the court stated that, “The report was prepared for a dual purpose: for what may be called railway operation and safety purposes and for the purpose of obtaining legal advice in anticipation of litigation, the first being more immediate than the second, but both being described as of equal rank or weight.” Thus, the court concluded that the litigation purpose would have to be the dominant purpose, and hence, privilege was not available.
In several cases, it was found that the separate purposes of a document were part of a single, all-encompassing purpose related to litigation. This was particularly seen in Re Highgrade Traders Limited– “What then is the purpose of the reports? The learned judge found a duality of purpose because, he said, the Insurers wanted not only to obtain the advice of their solicitors, but also wanted to ascertain the cause of the fire. Now, for my part, I find these two quite inseparable.”
In Sotheby’s Mark Weiss Limited, the High Court rejected the claim of privileged communication on the ground that the communication had dual purpose- to take a commercial decision as to whether to rescind the sale of the painting, and the litigation that may follow the decision. More importantly, the claimant had failed to establish that the litigation purpose was the dominant purpose.
In WH Holding Limited v. E20 Stadium LLP, the Court of Appeal held that to qualify as litigation privilege, the communication should be prepared for the dominant purpose of acquiring advice or evidence in connection with the conduct of litigation. It is not sufficient to claim that it is for the dominant purpose of conducting litigation in the broader sense.
Normally, when a solicitor arranges a meeting with a potential witness to take a proof of evidence, the conversation or any record of conversation therein shall be protected as privileged communication as they had taken place for the dominant purpose of being produced in litigation, irrespective of the witness’s motive for agreeing to meet the solicitor. However, in Property Alliance Group v. The Royal Bank of Scotland PLC, the court rejected the claim of privileged communication, because the witnesses were deceived into believing that the meeting was for discussing business matters. The court held that the meeting was not for dominant purpose of litigation.
Flaws in the Indian Evidence Law Related to Privileged Communication
Section 126 of the Indian Evidence Act is restrictive when it comes to defining a legal professional advisor. In India, privileged communication applies only to litigation practitioners and not to in-house counsels. The phrase ‘legal professional advisor’ also does not include a patent agent. Hence, there is no statutory protection for the communication between in-house counsels and their employers, which is a matter of grave concern. Further Section 129 restricts the privilege to clients only, and the legal professional advisor does not enjoy such privilege. Thus if the client expressly or impliedly consents to disclose such information or if he fails to object to such disclosure, it might result in a loss for his attorney.
The Bar Council of India Rules provide for enrollment of lawyers as advocates. Under the rules, once a lawyer joins a company full time as an in-house counsel, he is under an obligation to surrender his registration as an advocate. In case he surrenders his registration, he will be treated as a regular employee and his communication with the company will not attract legal privilege. However, in the event he does not surrender his registration and engages in communication with his company, whether or not such communication will attract legal privilege is not clear in the eyes of the law.
Several High Courts have opined that legal privilege be extended to the legal communications between in-house counsels and their employers, but must not be extended to administrative or executive communication. Again, it becomes difficult to establish the right to legal privilege, in case the communication has dual purpose. In Satish Kumar Sharma v. Bar Council of Himachal Pradesh, the Supreme Court held that “If a full-time employee is not pleading on behalf of his employer, or if terms of employment are such that he does not have to act or plead but is required to do other kinds of functions, then he ceases to be an advocate. The latter is then a mere employee of the government or the body corporate.” Communications between a company and other professional can be thus forced to be disclosed before any competent authority as no privileged communication is enjoyed by such other professionals.
In India, due to the investigations involved in determining which communication attracts legal privilege is highly subjective, there is no standard procedure or mechanism provided by statute for conducting such investigations. Further, where the situation is not crystal clear, like for instance where there is dual purpose of a communication or the attorney-client relationship is complicated/unclear, there is no mechanism for judicial interpretation that would give a clear solution. Hence, often clients prefer to hire external legal advisors and forensic experts for even internal investigation, so as to come under the protective shield of privileged communication. In the past there have been recommendations issued in several Law Commission Reports, but they have yet not been enforced by way of statutory amendment.
In a country such as India where the judicial system is still heavily dependent on litigation, and transactional methods and mediation are being looked at as a way of lessening the burden of our courts, having a restriction upon who can enjoy legal privilege does not help us in any way. There are several instances, as highlighted in the paper, where the position as to applicability of legal privilege is not clear. Further, the recommendations of the Law Commission Reports regarding extension of the legal privilege have not been enforced and hence remain in a grey area. Hence, it is important that these lacuna are resolved and the privilege is extended to in-house counsels as well as patent agents.