Report No. 69

V. Suggested New Exception

68.26. Section 126-Proceedings between a person and his legal adviser-exception for.-

So much as regards the exception for illegal acts. Section 126 does not make any exception for cases where the suit itself is between a person and his legal adviser, or where a legal adviser is prosecuted for an offence against the client or vice versa. We are of the view that in such a case also, the privilege should not apply for the following reasons:-

(i) the application of the privilege in such a case would shut out essential evidence and no other evidence would be available, and

(ii) by taking such a proceeding, the client can be presumed to have waived the privilege if the proceeding is by the client and for the sake of mutuality, the same principle should be applied where the proceeding is against the client.

This aspect does not seem to have received detailed attention in India. But a simple illustration could be cited to show how the point could arise. X, a client, gives instructions to his legal adviser for conducting certain litigation. The litigation is decided against X, and X files a suit against his legal adviser for professional negligence in not conducting the case properly.

68.27. The defence of the legal adviser is that the instructions given by X were not adequate. In such a case it may be necessary to communicate to the court the instructions given by the client, their exact purport and text. Under the existing section, however, this cannot be done.

68.28. Taking a converse case, where a client is sued by his legal adviser for remuneration, the disclosure of communications made for the purpose of the previous litigation may become necessary. In both cases, strict application of the privilege would work hardship, and an exception should, therefore, be made for such cases. The following provision in the California Code1 of evidence may be noted:

"Section 958. Exception: Breach of duty arising out of lawyer-client relationship.

There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship."

The following comment is appended to the section quoted above:

"Comment. It would be unjust to permit a client either to accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defence of the charge or to refuse to pay his attorney's fee and invoke the privilege to defeat the attorney's claim. Thus, for example, if the defendant in a criminal action claims that his lawyer did not provide him with an adequate defence, communications between the lawyer and client relevant to that issue are not privileged. See People v. Tucker, 61 Cal 2d 828: 40 Cal Rptr 609: 395 P 2d 449 (1964). The duty involved must, of course, be one arising out of the lawyer-client relationship, e.g., the duty of the lawyer to exercise reasonable diligence on behalf of his client, the duty of the lawyer to care faithfully and account for his client's property, or the clients' duty to pay for the lawyer's services."

1. Section 958, California Code of Evidence.

VI. Section 126-Documents

68.29. It is necessary now to refer to that part of section 126 which deals with documents. The gist thereof is that a legal professional adviser is not permitted to disclose the contents of documents with which "he became acquainted" for the purpose of, and in the course of, the professional relationship. Now, there is a dictum in a Gujarat cases that-"The protection against production or disclosure, however, does not extend to any original document which might have come into the possession of the advocate from his client." This is followed by the observation-"The advocate is but the agent of the client to hold the document, there is no reason either on principle or authority on which the advocate can refuse to produce the document."

68.30. In the Gujarat1 case, a letter received from the State Government by the complainant, which was in the possession of the advocate of the accused, was the subject-matter of dispute, the letter being of material importance in the present prosecution for defamation. The precise question before the court was whether section 94, Cr. P.C., 1898 (power to issue a search warrant), could apply to the document, and that question was answered in the affirmative.

This was on a construction of section 94, which contained no exception for section 126, Evidence Act. This conclusion as to the scope of section 94 need not be questioned. Section 94 has not been construed to apply to the accused, whether it excludes the lawyer, we need not discuss. But the dictum that section 126 does not seem to extend to any original document which might have come into the possession of the advocate does not, with respect, appear to be consistent with the express language of section 126.

1. Chandubhai v. State, AIR 1962 Guj 290 (293), para. 3 (P.N. Bhagwati, J.).

68.31. In the Evidence Act, the section relevant to mere production of a document, is section 162, and, a document in respect of which there is any objection must, nevertheless, be produced; that section expressly so provides. It is for the court to determine the objection-a rule which applies as much to a document privileged under section 126, as to any other.

68.32. A Madras case1 on section 94, Cr. P.C., also contains a similar dictum as to the scope of section 126. The document in question was a letter written by accused 1 to accused 6 and in the possession of the counsel for accused 6. The High Court observed-"Prima facie, those letters are not privileged communications by accused to his lawyer under section 126."

With respect, the dictum seems to go contrary to the plain language of the section. Since however, both the observations are obiter dicta, and since the words of section 126 appear to be specific, we do not recommend any amendment on this point.

1. Public Prosecuter v. M.S., AIR 1939 Mad 914 (Lakshmana Rao, J.).

68.33. Position in England as to documents.-

As a matter of interest, however, we would like to note that in England, "a solicitor cannot be compelled to disclose the contents of documents (which are) professionally entrusted to him, and which he is acquainted with only by virtue of professional conduct".1 He is not permitted even to disclose the date when his client's documents were entrusted to him.2 Nor can he disclose the condition of the document when they were in his possession; for example, whether they were stamped, indorsed, or bearing erasures.3

Of course, this does not allow the solicitor to withhold a deed which the other side is ordinarily, in the course of things, entitled to see, merely because the solicitor had obtained it in the course of his profession for the purpose of the litigation. What documents the opposite party is entitled to see is a subject governed by the law of procedure. In general, a party is entitled to see documents which are essential for the case of the party desiring inspection.

"In England, it is considered contrary to the interest of justice to compel a litigant to disclose to his opponent before trial the evidence to be adduced against him so to do would give undue advantages for cross-examination and lead to endless side issues; and would enable witnesses to be tampered with, and give unfair advantage to the unscrupulous." This principle, which was laid down by Lindley, L.J. in Re Strachan4 has been applied by the Court of Appeal in an interlocutory appeal, by the defendants in the case of Brooks v. Prescott, (1948) 1 All ER 907 (910), relying in particular on O'Coweke v. Darbishire, 1920 AC 581 (605).

1. Dwyer v. Collins, (1852) 7 Exch 639.

2. Tourquand v. Knight, (1836) 2 M&W 798.

3. Wheatley v. Williams, (1836) 1 M&W 533.

4. Strachan fin re:), (1895) 1 Ch 439 (445), citing Benbow v. Law, (1880) 16 Ch D 93.s

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