In-House Counsels – Not So Privileged
This article is a humble attempt to understand whether under the Indian laws, Attorney-Client Privilege applies to communications between employees of a corporate entity and their in-house legal counsel, and compare the Indian Scenario with that of the United States of America.
The Statute
The Indian Evidence Act, 1872 is the relevant legislation that governs the admissibility of evidence in any proceeding before a court of law and Sections 126 to 129 are the relevant provisions that govern the concept of Attorney-Client Privilege. Under Section 126, no barrister, attorney, pleader or vakil, is permitted 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 without his client's express consent. He is also barred from stating 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. Under Section 129, he cannot 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 give, but not others.
The question of whether the above provisions would apply in the context of an in-house legal counsel in the employment of a company depends on whether such a professional would fall within the scope of the terms “barrister,...
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...the two in-house counsels are provided with the two different roles. It is important to note that merely copying the in-house counsel on an email to non-lawyers is not the best way to request legal advice. Requests for legal advice should be addressed preferably only to the in-house counsel. If non-lawyers have to be notified that a request for legal advice has been made or that legal advice has been received, they can be copied on the e-mail. However, it is best to consider explicitly stating the purpose for which the non-lawyers have been copied.
Please note that this article is not a legal advice. Please request the in-house counsel for advice in case of any doubts. On a lighter note, the request for clarifications on any doubts that this article may leave you with, clearly entails legal advice, and thus, will itself be protected by attorney-client privilege.
Miller, Roger LeRoy., Meinzinger, Mary. Paralegal Today: The Legal Team At Work. Clifton Park, NY : Delmar Cengage Learning, 2010. Print
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9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
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[7] Cavendish Lawcards Series (2002) Company Law (3rd edn), p.15 [8] [1976] 3 All ER 462, CA. [9] Griffin, S. (1996) Company Law Fundamental Principles (2nd edn), p.19 [10] [1990] Ch 433. [11] Lecture notes [12] Lecture notes [13] [1939] 4 All ER 116.