Confidentiality of an Advocate to Compromise

Introduction:

Most of the Common Law countries require lawyers to preserve the confidentiality of their clients. The lawyers are not authorized to disclose any information given to them by their clients without their knowledge. This constitutes the Duty of Confidentiality of all the practicing advocates. The notion of Confidentiality was theorized to enable people to receive proper representation without being scared or anxious that their lawyer will disclose whatever they inform them. If the lawyers don’t get the entire truth, it is very hard for them to represent their clients efficiently. Moreover, if the client believes that the lawyer is not implementing his duty to maintain silence, then he may not believe that the advocate is working solely for safeguarding the interest of his clients.

The duty of an advocate to preserve the confidentiality of his client is closely intertwined with his sense of faithfulness and loyalty towards the client. If every person who approaches a lawyer gets worried about his Confidentiality, he will start wondering about the information he should disclose or keep to himself. This would lead to the improper representation of facts, leading to wrongful convictions. Thus, it is very crucial for lawyers to not divulge the information they receive from their clients.

Importance of an Advocate’s Duty of Confidentiality

In a case named “People V. Belge” [1], the judgment delivered by the Court of United States demonstrates the importance of the duty to maintain the client’s Confidentiality. The facts of the case were such that the lawyer had found a dead body based on the information provided to him by his client. However, instead of reporting the dead body to the legal authorities, he chose not to inform anyone. Thus, he was being prosecuted for not reporting the sighting of a dead body.

The issue of this case was to decide whether the advocate’s actions be pardoned just based on his duty to maintain the client’s Confidentiality. The Court ruled the case in the advocate’s favor. The judgment stated that the scope of the duty to maintain Confidentiality has a vast scope in a democratic country. The court mentioned that it is very crucial to respect the right of Confidentiality if they want to respect the right of people to not self-incriminate.

In a 2001 case of McClure [2], the judgment of the Canadian Supreme Court efficiently puts forward the grave importance of the rule of Confidentiality. The Hon’ble Judge stated that the privilege given to the advocates to maintain their client’s Confidentiality is essential for the development of any legal framework. We all are well aware of the fact that the law is a complicated circuit of relationships, rules, and individual interests. The judgment mentioned that the proper integration and development of any administration or body of justice largely depends on the role of an attorney. If the pieces of advice of the advocate are compromised, justice cannot be served in a just and efficient manner. Our constitution gives every individual their right to be properly represented; this right can only be given if the right to maintain Confidentiality is appreciated and respected.

Important features of the duty to maintain Confidentiality

There are some essential required to fulfill the duty of Confidentiality. These features are listed below:

• The duty continues throughout the professional relationship that prevails between an attorney and his client.
• If a client consults a particular lawyer but doesn’t continue his services in further legal proceedings. Still, the lawyer is bound to respect the Confidentiality of his previous client.
• The duty to protect the privacy of an advocate’s clients does not only limit itself to the overt disclosure of the discussed information. It extends to anything verbal or written that the lawyer discloses without having any real intention to commit that action. It is his duty to take all the necessary care so that the information will be tightly held between him and his client. He will still be held liable for any unintentional disclosure of facts that can incriminate his client.
• The lawyer is eligible to disclose any information regarding the client if the client himself consents to the said disclosure.
• Along with following and respecting the duty of Confidentiality, the lawyer should also make his client aware of the existence of such duty and the exceptions that are attached to it.

Legislation that supports the duty to maintain Confidentiality

The acts that support the client’s right to maintain his privacy are mentioned below:

1. The Indian Evidence Act, 1872
2. The Advocates Act, 1961
3. The Bar Council of India Rules

Section 126 to Section 129 of the Indian Evidence Act, 1872, serves as a codification of the rules and regulations that govern the professional exchange of information that occurs between a lawyer and his client. According to Section 126 of the Act, any individual who is in need of legal advice, and who approaches a practicing lawyer (any advocate who is registered under the Advocates Act) has the right to claim the benefit of Confidentiality. Any conversation that happens between an attorney and a client is protected under Section 126 of the Indian Evidence Act, 1872.

The Act states that certain things cannot be disclosed by the attorney without the consent of their client. It does not matter if that information was given to them during their services or after attaining their services. Any document that the client submits as evidence to his attorney must not be disclosed to any third person without the knowledge of the said client. If the client chooses to discontinue a lawyer’s services after taking his advice, then also it is the duty of that lawyer to not disclose any information regarding the input he received from or gave to his client.

According to Section 129 of the Indian Evidence Act, 1872, no individual can get compelled or forced to divulge any form of communication that has occurred between him or her and his or her lawyer. One can only be compelled to disclose any sort of information before the Court of law if he has offered himself to be a witness. In that case, the Court can force that person to give any information that might be essential in coming to an accurate judgment. Information shared between an attorney and his client will receive special privilege even if that information contains some facts about a third person. This right of privacy does not only limit to the attorneys but also to the clerks (that are working under an attorney), interpreters, and any other assistants of the attorney.

Apart from the provisions mentioned in the Indian Evidence Act, there are more rules mentioned in the Advocates Act (the Act which governs the conduct of all the practicing lawyers in India) that strengthen the right to maintain the confidentiality of the clients. The rules of BCI (Bar Council of India) demand certain levels of professional etiquette and role of conduct for all the registered lawyers. The rules clearly state that any advocate should not (explicitly or implicitly) breach the responsibilities that are imposed upon them under Section 126 of the Indian Evidence Act.

Rule 7 of the BCI Rules (given under an Advocate’s Duty towards their client)

This rule reiterates the spirit of the duty to Maintain Confidentiality. It mentions that the lawyer should take extreme care in not disclosing any information that is given to him by his client. He can also not disclose any advice that he has given to him during the legal proceedings.

Rule 15 of the BCI Rules

 This rule safeguards the interest of an individual by stating that a lawyer should never take advantage of the confidence or trust that is put upon him by his client. He should take extra measures in representing his client in the most efficient manner.

If a practicing lawyer breaches any of the rules mentioned above, he is liable for punishment and will be subject to various disciplinary proceedings. In case an attorney divulges any information before the Court of Law, that information cannot be used as a piece of evidence to convict his client.

Exceptions of the duty to maintain Confidentiality

A lawyer is forced to maintain his silence regarding the conversation that happens between him and his client. However, there are some exceptions to the rule of Confidentiality.

• Section 126 is only meant to safeguard the interest of his clients so that they can be properly represented. However, if the client gives his consent to disclose any information, then the lawyer will not be held liable under this section.
• If the information given to him has the power to save an individual’s life or it can save him from any bodily harm, then the lawyer is bound to disclose that information.
• No privilege is given to any form of communication that might happen between the attorney and his client against that individual who holds the joint or same interest with that particular client on the identical subject matter, for example, partners of the same firm or shareholders of one company.
• If the advocate is called as a witness to a case, then he has to disclose any information that might help in the process of sentencing.
• If the client offers himself to stand as a witness to a case.
• If the lawyer observes that in the course of legal proceedings, a crime has been committed by his client, then he has to disclose that information.
• Any communication made for illegal or illicit purposes with an explicit intention of executing a crime will not fall under the ambit of privileged information.

Conclusion

In a nutshell, the duty of an attorney to protect the confidentiality of his clients is present to give a proper chance for the accused to prove his innocence. This rule came into prominence during the rule of Queen Elizabeth to motivate people to be completely truthful with their lawyers. However, it is very essential to maintain the balance between the rule of Confidentiality and public interest regarding certain information. We should also try to increase more awareness about this power among the general public. When a client is unaware of this rule, he might be nervous about the information that he wants to disclose. Thus, it is very crucial for everyone to know their rights so that they can get proper representation.

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References:

• [1] People v. Belge – 83 Misc. 2d 186, 372 N.Y.S.2d 798 (Cnty. Ct. 1975)
• [2] R. v. McClure, 2001 SCC 14, [2001] 1 SCR 445
• Ramanuj Mukherjee, Privileged Communications and a lawyers duty to keep client information confidential, iPleaders, (17 August 2011) https://blog.ipleaders.in/privileged-communications-lawyers-duty-client-information-confidential/
• Nishith Desai, Client Confidentiality Privilege, Nishith Desai Associates, (31 January, 2013)  http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/article/client-confidentiality-privilege-only-for-lawyers-and-not-for-accountants.html