Professional communications
According to Section 126, No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, 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, 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 employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
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.
Explanation:
The obligation stated in this section continues after the employment has ceased.
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.
Every person, however guilty he may be, is entitled to fair trial, is a rule recognized in all civilized countries. Fair trial involves the services of a counsel, and a counsel cannot properly defend his client unless he knows the whole truth. It is not against professional ethics to defend a man known to be guilty, because, it is duty of the prosecution to prove the case against the accused and it can always be shown that the prosecution evidence is defective and therefore the benefit of doubt should be given to the accused, though to put forth evidence known to be false on behalf of accused would be unprofessional. That being so, unless the communications between counsel and client are protected from disclosure, one of the valuable right of a person - services of counsel- would be lost
Illustration:
(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, 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.
According to the case, the protection from disclosure is in a subsequent proceeding by A for malicious prosecution against the prosecutor in the embezzlement case. This portion is omitted in the illustration.
(d) "A consults an Advocate with the intention of retaining his services, but he does not do so, any communications which passed between A and the Advocate are protected from disclosure."
According to Section 126, No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, 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, 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 employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
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.
Explanation:
The obligation stated in this section continues after the employment has ceased.
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.
Every person, however guilty he may be, is entitled to fair trial, is a rule recognized in all civilized countries. Fair trial involves the services of a counsel, and a counsel cannot properly defend his client unless he knows the whole truth. It is not against professional ethics to defend a man known to be guilty, because, it is duty of the prosecution to prove the case against the accused and it can always be shown that the prosecution evidence is defective and therefore the benefit of doubt should be given to the accused, though to put forth evidence known to be false on behalf of accused would be unprofessional. That being so, unless the communications between counsel and client are protected from disclosure, one of the valuable right of a person - services of counsel- would be lost
Illustration:
(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, 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.
According to the case, the protection from disclosure is in a subsequent proceeding by A for malicious prosecution against the prosecutor in the embezzlement case. This portion is omitted in the illustration.
(d) "A consults an Advocate with the intention of retaining his services, but he does not do so, any communications which passed between A and the Advocate are protected from disclosure."
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