Report No. 69
III. Section 126-Principle and Scope
68.17. So much as regards the rationale of the privilege. We now come to the sections proper. So far as the disability of the lawyer is concerned, the principal section is section 126. This is how the operative part reads-
"126. No barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment."
Under the proviso to the section, nothing in this section shall protect from disclosure-
"(1) Any such communication made in furtherance of any illegal purpose.
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment."
It is made clear that it is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client. It is also made clear (vide the Explanation) that the obligation stated in this section continues after the employment has ceased. There are three illustrations appended to the section-
"(a) A, a client, says to B, an attorney-"I have committed forgery, and wish you to defend me."
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to B, an attorney-"1 wish to obtain possession of property by the use of a forged deed on which I request you to sue."
This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, art attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure."
Sections 127 and 128 contain certain supplemental provisions. Section 129 deals with the client's privilege.
68.18. Scope and waive.-
It is to be noted that sections 126 to 128 which apply when the legal adviser or his clerk etc. is interrogated as a witness, do not make a distinction between a party to a suit and a witness. Section 129, which applies when the client himself is interrogated also applies whether such client be a party to the case or not; of course, it is only ommunications which have passed between a person and his legal professional adviser that are privileged. The rule is established for the protection not of the legal adviser, but of the client, and the privilege, therefore, may only be waived by the latter.1
1. See section 128.
68.19. Third parties.-
The question how far legal professional privilege can be lost by a third party learning of a confidential communication or obtaining a confidential document was raised in England in the controversial decision in Butler v. Board of Trade, 1971 Ch 680.1 The plaintiff in that case sought a declaration that the Board of Trade was not entitled, in criminal proceedings in which the plaintiff was the accused, to adduce in evidence a copy of a privileged letter from his solicitor. Goff J. held that though there is no privilege as regards copies of privileged documents, there is jurisdiction to restrain the production of such copies because they contained confidential information, at least in private prosecutions and civil litigation. In public prosecutions, however, the interests of the State prevail over the individual's property interests, so that then the documents must be disclosed. In India, since the law is codified, third parties can be compelled to disclose communications overheard by them.
(a) C. Tapper Privilege and Confidence, (1972) 35 MLR 83;
(b) Heydon in (1974) 37 Modem Law Review 201.
IV. Section 126-The Exception for Illegal Purpose
68.20. Exception for illegal purpose.-
The attorney-client privilege has always been subject to the qualification that protection is denied to communications wherein a lawyer's assistance is sought in an activity which the client knows to constitute a crime or tort.1 This is sometimes called the "future crime or tort" exception. In England, the exception is sometimes described in narrow terms as confined to "criminal activity"; but, it is generally understood that the exception covers all illegal activities.2
1. Gamer The Crime or Fraud Exception to the Attorney-Client Privilege, (1961) 47 American Bar Association Journal 708.
2. See Future Crime or Tort Exception, (1964) 77 Harvard Law Review 730, 736, 737.
68.21. Sometimes, however, it may be difficult to apply the exception very strictly. If, for example, a client is engaged in a continuing offence, a statement of his intention to continue is necessarily inseparable from a confession of past conduct.
68.22. In Gartside1, the proposition is enunciated that there are some confidential communications which should not be protected by the courts. In this case the plaintiff's clerk had taken documents which, he alleged, showed fraudulent transactions on the part of the plaintiffs. On the question of the confidentiality of the documents, Wood V.C. said:
"You cannot make me the confident of a crime or a fraud, or be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part: such a confidence cannot exist."2
There is thus a moral basis for the exception regarding crime or tort. There can also be advanced a juristic reason. A legal adviser does not undertake to assist in illegal activities. He, on the other hand, is expected to act in furtherance of the law.
1. Gartside v. Outram, (1856) 26 LJ Ch 113 (114).
2. See also Distillers v. Times Newspaper, (1975) 1 All ER 41 (48).
68.23. In jurisdictions in which the privilege of a patient in regard to communications made by him to his physician is recognised, that privilege is also subject to the exception regarding activities undertaken for a criminal on illegal purpose. For example, the patient's privilege does not cover a request to procure narcotics illegally.
68.24. In England, the rule that communications in furtherance of fraud or crime are not protected,1 is subject to the rule that there must be some definite evidence produced, or charge made, of fraud or illegality.2
1. R. v. Cox, 14 QBD 153.
2. Bullivant v. Attorney General of Victoria, 1901 AC 106.
68.25. Other evidence required to prove illegal purpose.-
In the U.S.A., the method adopted by the Uniform Rules of Evidence for invoicing the "future crime or tort exception" is of interest. As to the attorney-client privilege, it provides,1 "such privilege shall not extend to a communication if the Judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding (of illegal purpose) " The source of this procedure is the English case of O'Rourke v. Darbishire, 1920 AC 581 (604), in which the court denied an application for a bill of discovery, which merely alleged that communications between client and solicitor were in furtherance of a wrongful act, on the ground that "there must by something to give colour to the charge some prima facie evidence that it has some foundation in fact."
Later, the Supreme Court of the U.S.A. endorsed the rule in the context of a dispute over the admissibility of juror testimony,2 but only a small number of cases have held rigidly to this requirement that a foundation for the exception be laid solely in extrinsic evidence.3
1. Uniform Rules of Evidence, section 26(2).
2. Clark v. United States, (1933) 289 US 1 (14).
3. See, e.g., United States v. Bob, 106 F 2d 37 (2d Cir), Cert. denied, (1939) 308 US 589.