Indian Probe Agency visits Cyril Amarchand Mangaldas – How privileged are Lawyer dossiers?

Hemant Batra | Writer, Author, Speaker, Law & Policy Expert

Recently, it was reported in some sections of the print media that India’s principal investigating agency – The Central Bureau of Investigation (CBI) had visited the offices of India’s known law firm, Cyril Amarchand Mangaldas, to gather documents linked to the Nirav Modi group. A CBI official told the Economic Times, “During raids on the Nirav Modi premises, we understood that certain documents belonging to the latter were with the law firm, which we collected from its offices”.

The same newspaper also reported that a Cyril Amarchand Mangaldas official declined to comment on the matter, though sources said that the law firm fully cooperated with the probe agency.

Now, this raises some fundamental questions regarding the endurance and coherence of legality of the client and lawyer representative relationship, and also the insulation of a lawyer regarding a professional matter.

As a lawyer myself, I always thought that there is a very thin line between a lawyer assuming the role of an accessory to the client’s vision, mission and activities. In ordinary circumstances, a man representing a criminal is also an accomplice in crime. But, there is an exception to the said principle or rule. The exception is where an individual represents a criminal in his or her capacity as a professional.

However, what issue I intend to examine here is regarding collection of evidence relating to a client by a probe agency from a lawyer’s premises. In the Indian context the governing law in respect thereof is predominantly recorded in Sections 126 and 129 of The Indian Evidence Act, 1872.

Sections 126 stipulates that a lawyer shall not be `permitted’ `at any time’ except `with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his’ engagement as such lawyer, `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’ engagement. The lawyer is also restricted `to disclose any advice given by him to his client in the course and for the purpose of such’ engagement.

Obviously, this provision has a proviso, which states that the lawyer can make a disclosure of the privileged information if `any such communication’ is `made in furtherance of any illegal purpose’ or where the lawyer has observed any fact in the course of his engagement as such, `showing that any crime or fraud has been committed since the commencement of his’ engagement. It is inconsequential whether or not the attention of such lawyer was directed to such fact by or on behalf of his client.

Interestingly, the obligation specified in this provision continues even after the engagement of lawyer has ceased.

It is very crucial to run through the illustrations contained in this provision of law under the statute. These examples define the intention of the law framers. Let us go through these illustrations.

(a) A, a client says to B, an attorney-“I have committed forgery and I wish you to defend me”.
As the defense 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 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 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.

The analysis of this provision of law in light of illustrations is very clear that the clock of lawyer being an accomplice or an accessory in an alleged crime starts in two eventualities – (a) where lawyer is engaged by a client to structure a crime to be committed in the future; and/or (b) where an alleged crime is committed by the client in the course of lawyer’s engagement and the same is within lawyer’s knowledge.

Thus, conversely, a lawyer is not an accomplice or accessory in an alleged crime and is also under an obligation of non-disclosure of any information/documents thereof, if that alleged crime, already stands committed and he or she is defending or advising on the same professionally.

In fact, Section 129 of The Indian Evidence Act, 1872 even goes to the extent of stipulating that ‘no one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others’.

The Bar Council of India has also framed the Bar Council of India Rules. Chapter II under Part VI Section II deals with the standard of professional conduct and etiquette. Rule 17 of the said Rules provides the duty towards client as one of the solemn duties. It reaffirms the above position and states that ‘An Advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act’.

I have laid my hands on several judgments, where the courts of law have endorsed and confirmed the position of law that the communications between the lawyers and their clients are confidential and the same cannot be shared without the express consent of the concerned clients. It is only when the communications are shared in furtherance of illegal activities or any crime is committed post lawyer’s engagement that this confidentiality obligation gets waived. In Sudha Sindhu v. Emperor, it was held that “All communications between an accused person, or indeed any litigant and his legal advisers are privileged and confidential. It is impossible for the accused to have anything confidential about communication with his lawyer if he and his lawyer are surrounded by police officers.”

In Karamjit Singh vs. State of Punjab & Others, the Judge held that “I am of the considered opinion that Section 126 of the Evidence Act is not obliterated and has to be given effect to notwithstanding the RTI Act.”

The client and lawyer confidentiality has been given utmost significance and importance by the courts of law in scores of judgements. Though, we may read Section 126 as being protective to the lawyers but actually it is not so. Section 126 is a protection granted to the client. And it applies to both civil as well as criminal cases.

The courts have even gone to the extent of saying that any communication exchanged between the accused and his lawyer is inadmissible evidence even if the accused fails to claim privilege.

A lawyer cannot be charged as an offender just because he holds documents of his accused client. A lawyer enjoys immunity so long he isn’t furthering the crime knowingly.

A full bench of the Bombay High Court has held that once a document is branded as privileged, it is always privileged notwithstanding that it is relied or being questioned upon in another matter.

As I understand `communication’ includes documents attached and enclosed. Hence, any document in the possession of the lawyer pursuance to Section 126 cannot be shared in the absence of a court order and with due intimation to the client (in a scenario where client has not granted express consent). However, where the client is incommunicado then the lawyer may share the documents, in my view with the court in a sealed cover.

Though, I am not privy to the modalities and processes involved in recovering the documents relating to Nirav Modi Group by the CBI from Cyril Shroff’s office but the trend is obviously dangerous in so far as lawyer is concerned. It is like a double edged weapon or a gun shooting from both sides. If lawyer shares the documents, he could be in breach of Section 126 and could be sued by the client, and if he conceals or doesn’t cooperate with the investigating agency, he could be booked for a crime or obstruction of investigation or justice.

Indian law doesn’t recognize discovery of documents at a pre-trial stage as it may help building up an aggravated case against the accused. But having said that, the exceptions to principal texts of laws are having overwhelmingly overriding effect in most cases. In casual words, exceptions and provisos are more substantive than the core provisions many a times, and they have field days in courts.

I agree, the law needs to constantly evolve and lawyers need to be more accountable (or better to use the word responsible) in respect of the alleged crimes of their clients. Undoubtedly, defaulter, rogue or criminal clients are more lucrative (and high fee givers) than the clean ones but sense of righteousness supersedes everything. Lawyers are officers of the court and they have duty towards the state and its people.

Lawyers do need an answer as to the rights and qualifications attached to their professional briefs containing documents and information shared by the clients and marked as `confidential’ or `privileged’. How privileged are these dossiers?

©Hemant Batra