Provision for Professional communications | A a client says to B, a lawyer: “I wish to obtain possession of the property by the use of this forged deed, on which I request you to sue”. Is this communication protected from disclosure?

Question: Provision for Professional Communications | A a client says to B, a lawyer: “I wish to obtain possession of the property by the use of this forged deed, on which I request you to sue”.

Is this communication protected from disclosure? [U.P.C.J. 1983, BIHAR J. 1978, W.B.J.S. 1999, U.P.A.P.O. 1996, HR. J.S. 2001, D.J.S. 1971]

Find the answer to the mains question only on Legal Bites. Provision for Professional Communications | [A a client says to B, a lawyer: “I wish to obtain possession of the property by the use of this forged deed, on which I request you to sue”. Is this communication protected from disclosure?]

Answer

Section 126 of the Indian Evidence Act deals with the provision for Professional communications.

It states: “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 condition 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 :

Provided that nothing in this section shall protect from disclosure—

1. 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.”

The facts of the present case at hand are borrowed from Illustration (b) appended to section 126 of the act. In the case, A, a client, says to B, an attorney—”I 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.

The reason after that is that the privilege under this section is subject to a few exceptions Communications made in furtherance of illegal purpose.

The present case falls under the first exception to this privilege that communications made in furtherance of an illegal purpose are not protected.

In R v. Cox and Railton (1884) 14 QBD 153, the client consulted a lawyer for the purpose of drawing up a bill of sale which was alleged to be fraudulent. The communication was held to be not privileged, for the consultation was for an illegal purpose. “The question is the court said, “whether, if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose, for which his advice is wanted, the communication between the two is privileged”.

The court finds that no such privilege existed. If it did, the result would be that a man intending to commit treason or murder might safely take legal advice for the purpose of enabling himself to do so with immunity and that the solicitor to whom the application was made would not be at liberty to give information against his client for the purpose of frustrating his criminal purpose.

In each particular case, the Court must determine upon the facts actually given in evidence, whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime, for the purpose of being guided or helped in committing it.

Illustration (b) appended to section 126 is on this point. A client requests a lawyer to bring an action on the basis of a forged deed. This is communication in furtherance of a crime and is, therefore, not protected.

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