“But the mere truth won’t do. You must have a lawyer.”

– Dr Allan Woodcourt to the wrongly accused George Rouncewell in Charles Dickens’s Bleak House.

The Enforcement Directorate (ED) recently sent summons to Senior Advocates Arvind Datar and Pratap Venugopal, in connection with a legal opinion rendered by them in the course of their professional duties. While the summons were subsequently withdrawn with immediate effect, the bigger question of autonomy of the legal profession still remains.

According to reports, Datar had vehemently argued as to why lawyers cannot be compelled to testify against their clients for rendering legal opinions, as the same comes under professional privileges. The infamous ESOP case, which is still under the scrutiny of the ED, is inviting flak from various bar associations of the country.

Both the Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association have taken strong objection to the same, describing them as chilling attacks on the independence of the profession. The said summons are not just coercive and a frontal attack on the sacrosanct concept of attorney-client privilege, but also an impediment to the fundamental rights of citizens to seek legal aid and advice.

In common law jurisdictions, attorney-client privilege is a fundamental and well-established legal principle. However, most statutes are merely an embodiment of the common law rule and have not further expanded or limited application of the privilege.

In India, attorney-client privilege is a well-established and statutorily recognised principle, primarily governed by the Bhartiya Sakshya Adhiniyam (BSA), 2023, specifically  in Sections 132 to 134. The Advocates Act, 1961, and the Bar Council of India Rules also reinforce this privilege by outlining the duties and professional conduct expected of advocates.

The BSA maintains the strong protection for attorney-client privilege that existed under the Indian Evidence Act, 1872. It emphasises the confidentiality of communications made for the purpose of seeking or providing legal advice, extends this protection to the advocate's staff and specifies the conditions under which a client might be deemed to have waived the privilege. The intent remains to foster trust and open communication essential for a fair legal process.

Part VI, Chapter II (Standards of Professional Conduct and Etiquette), Rule 7 and 14 of the Bar Council of India Rules specifically lay down the ethical duties of an advocate, which directly relate to client confidentiality.

While certain exceptions exist, the edifice of the privilege is free and frank exchange of facts, suggestions and advice between advocates and their client.

While the BSA aims to safeguard confidential communication between a legal professional and their client, there are specific exceptions where this privilege does not apply. These exceptions are crucial for preventing the abuse of the privilege and ensuring justice so that the privileges are not used as a shield to protect crimes and fraudulent activities. They are as follows:

1. Communications in furtherance of an illegal purpose [Section 132(1)]: If any communication is made to the legal professional in furtherance of any illegal purpose, the privilege does not apply. This means that if a client seeks advice for committing a crime or fraud, that communication is not protected.

2. Facts observed in connection with a crime or fraud [Section 132(2)]: If the legal professional, in the course of their employment, observes any fact that indicates a crime or fraud has been committed since the commencement of their employment, this information is not privileged. It doesn't matter whether the client specifically directed the lawyer's attention to that fact. This exception aims to prevent lawyers from being unwilling accomplices to ongoing or future illegal activities.

3. Client's express consent (Section 132 proviso): The privilege can be waived by the client's express consent. If the client voluntarily agrees to disclose the communication, the legal professional is no longer bound by the privilege.

4. Client offering himself as a witness (Section 134 proviso): If a client offers himself as a witness in a proceeding, he may be compelled to disclose any confidential communication that has passed between him and his legal adviser. However, merely calling the legal adviser as a witness does not waive the privilege unless the client questions the adviser on confidential matters.

In Three Rivers District Council and Others v. Governor and Company of the Bank of England (2004), the House of Lords reiterated that "legal advice" is not confined to telling the client the law, but includes advice "as to what should prudently and sensibly be done in the relevant legal context". Lord Rodger used a simple but useful test to determine whether the lawyer was providing such advice. He said that it was to be seen whether the lawyer "put on legal spectacles when reading, considering and commenting on the drafts?"

All communications exchanged between clients and their attorneys, for the purpose of seeking professional advice, are protected and the protection applies even to a copy of any document that has been retained. The Madras High summarised in D Veerasekaran v. State of TN that a letter sent by an advocate to their client who was suspected of terrorist activities, could not be used as an evidence against the advocate for proving the accusation of abetment since the letter was protected as a part of privileged communication.

This judgment mostly deals an advocate's right to professional communication with clients, specifically in the context of the police preventing him from meeting clients.

In the case of Shire Development Limited v. Cadila Healthcare LLC before the United States Court of Appeals for the Third Circuit, Wilmington, Justice BN Srikrishna rendered an opinion stating that the protection under Section 126 of the Evidence Act does not extend to in-house legal counsel. While judicial precedent on this aspect continues to be uncertain, it is notable that it is now a matter of settled law that in-house counsel are not “advocates” within the meaning of the Advocates Act, 1961. 

In Larsen & Toubro (2003), the Bombay High Court held in favour of the petitioner company that attorney-client work in anticipation of litigation is entitled to protection under Sections 126 and 129 of the Act.

In Mukesh Agarwal v. Public Information Officer, Reserve Bank of India [2012] the Central Information Commission (CIC) held that while there may be a fiduciary relationship in respect of communication from the client to his or her attorney, there is no fiduciary relationship in respect of communication from the attorney to the client when the client is a public body. Section 8 (1)(e) of the Right to Information (RTI) Act excludes from disclosure of information available to a person in his or her fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.

In Cecilia Fernandes v. State, the Bombay High Court opined that the right to consult a legal practitioner under Article 22(1) of the Constitution of India could only be exercised meaningfully in confidence.

In Anil Vishnu Anturkar v. Chandrakumar Popatlal (2022), the Bombay Court had set aside a witness summons sent to a lawyer and held that communications between a lawyer and client are privileged in nature. It further said that a lawyer cannot be compelled to confirm such a communication in a trial even if it is already disclosed to the trial court by another party.

The criminal justice system's edifice of separation of powers and judicial independence are universally lauded. Yet within this intricate framework, the advocate often emerges as the most endangered. Unlike the judiciary, which enjoys constitutional safeguards, or the police, who operate under a well-defined structure, advocates in India frequently find themselves in a precarious position, exposed to a gamut of threats that compromise their ability to fulfil their constitutional mandate.

This inherent fragility, augmented by escalating incidents of violence and harassment, underscores the urgent and compelling demand for a codified Advocates Protection Act across the nation.

This frontline exposure to adversarial dynamics leads to obstructions in availing justice. This incident, where the ED arbitrarily issued summons to two senior advocates merely for rendering a legal opinion in the ordinary course of professional duty, though later withdrawn, serves as a stark and unequivocal reminder.

This investigative overreach, swiftly condemned by Supreme Court Bar bodies as an affront to legal independence, underscores the critical urgency for the legal fraternity to unite and demand robust, nationwide statutory protection. Such incidents not only threaten individual lawyers, but also compromise the very foundation of the rule of law and the constitutional right to effective legal counsel.

Pragya Parijat Singh is an Advocate-on-record practicing at the Supreme Court of India.