Provided that 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 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.
The obligation stated in this section continues after the employment has ceased.
(a) A, a client, says to B, an attorney—“I have committed forgery, and I 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—“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.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, Â 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 Â 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 126 to 129 deal with the privilege relating to professional communications between legal practioner and clients. It makes a legal practioner and his dark in legal obligations not to disclose any communication made by his client for the purpose of professional employment. A legal adviser when he is entrusted by his client is totally prohibited by this section to make any communication or information published so that his opponent or any other litigant cannot take any advantage so long the proceeding is pending before the court of law or even before filling it. “If such communications were not protected, no man would dare to consult a professional adviser, with a view to his defence or to the enforcement of his rights; and no man could safely come into a court, either to obtain redress, or to defend himself.”
This section protects only legal practioners and the clients. Under this section no legal practioner, viz., barristers, attorney, pleader, vakil or their clerks, shall be permitted to disclose in course and for the purpose of employment.
It consisted of:
(1) Any communication made to him by his client or any advice given by his client or on behalf of his client or any advice given by him to his client;
(2) The contents and conditions of any document with which he is accounted.
But the section has no application:
(1) To any communication made in furtherance of any illegal purpose, and
(2) To any fact observed by a legal practioner in course of his employment showing that any fraud or crime has been committed since the commencement of the employment. [Illustration (b)]
The principle is made in the interest of justice. The privilege communication extends to all communications between client and legal adviser in the course and for the purpose of his professional employment. “The communication must have been made during the subsistence of the relation of legal adviser and client.” A mere gratuitous communication is not protected.
The privilege of confidentiality continues so long the relationship between the legal practioner and the client exists. Communication between an insurer and his counsel has been held to be privileged. Notes made by lawyer of statements of witness are within the range of protection. Even after cession of relationship the privilege exits.
The privilege is extended only to protect the interest of the client not for committing offence. What is stated in reply notice by a lawyer is evidently what he has disclosed to others and more particularly to the opponent’s lawyer and so it cannot continue to have the protection afforded by Section 126 of the Act.
Publication of communication not amount to defamation:
A notice was sent by the client through his lawyer and the opposite party sent reply containing defamatory remarks. It was held that it did not amount publication for the purpose of defamation.
1. When the communication is made in furtherance of any illegal purpose, there is no communication. [Illustration (b)].
2. During the period of professional employment any crime or fraud is committed by the client. [Illustration (e)].
3. When the communication is made by the party’s lawyer is not privileged.3
4. There is no privilege if the communication is disclosed by the express consent of the client and the privilege is waived.
5. When the client is sued by his lawyer for professional service the communication privilege is waived.
Right to Information Act, 2005:
All communications between lawyer and his clients are privileged communications protected under section 126 of the Evidence Act, Section 126 does not stand obliterated on the enforcement of the Right to Information Act.