Column: Intruding into Lawyers’ Privilege is Dystopian

Bar & Bench October 10 2019
lawyers

Somasekhar Sundaresan

If  news reports of this week are to be believed, yet again, investigative agencies have sought to make inroads into the domain of lawyers to conduct investigations on their clients. This is a breach of one of the foundational precepts on which a democratic society is built.

There is no other profession that is mandated by law to be a keeper of confidence. Under law governing evidence, confidential communication between a lawyer and her client is protected from extraction as evidence. Once a lawyer has been engaged, the communication between the client and the lawyer is protected from being compelled into evidence in proceedings. Therefore, the “privilege” enjoyed by this relationship is that legal advice given, the communication of facts on which advice is sought, and all related correspondence, occupy a sacred protected space that cannot be intruded into.

Indeed, a client may explicitly waive the privilege and ask the lawyer to make a disclosure of such privileged content. Likewise, if the lawyer is not actually providing legal services, but is herself involved in a violation of law that is being probed, arguably, the protection of privilege would not be available. This is the problematic area where, if an investigative agency were to lightly level allegations of colluding and participating in violation, the privilege can be lightly weakened.

Every society has its own norms and levels of acceptance of how much these spaces should be lightly intruded into. If news reports of this week are to be believed — that investigative agencies are seeking to express judgement about quality of legal advice given by lawyers in a certain case — a serious investigative intervention is afoot. If a probe into whether the lawyer was right or wrong in her advice to a client were to be par for the course, not only would the privilege be breached, but even in non-litigation situations, lawyers would become “bureaucrats”.

With apologies to the “steel frame of India”, the term in the pejorative sense is used to connote playing safe to push files without taking a specific position or stand on any issue. The inclination, and thereby the capacity of the bureaucracy, to be decisive, has already been chilled over the past several years. Even routine decisions backed by precedent have been called into question in anti-corruption probes. This has led to bureaucrats currently in office leading a fearful life.

Picture this state in the arena of private investment, where lawyers are involved in advising clients on investing capital. A central problem with the economy today is the bad sentiment in private capital formation. That negative sentiment just received a stronger disincentive, if legal advice that is sought by investors too is to be called into question.

There is a good reason for protection of the sacred space of communication between clients and lawyers. As a society that believes in the right not to be condemned without a fair trial, it is our society’s belief that no person should be deprived of his freedoms without due process of law and proper procedure established by law. This finds its way into the law governing evidence and even the Constitution.

A person accused of wrongdoing requires the privacy of a protected space to have a conversation on her narration of facts and events. If such a space does not exist, the only narrative would be that of the accusers. With that, the only requirement to establish a wrongdoing would then be to accuse a person of wrongdoing. Indeed, courts are repeatedly being told that custodial interrogation is necessary because a suspect is “not co-operating” — a term that is now synonymous with “not confessing to the accusation”.

Indeed, there can be problematic ethics among practitioners of law but that is quite the case with any profession and its practitioners. The ethical facets are subject matter of disciplinary proceedings before the institution that is charged with the jurisdiction to regulate the profession — not the domain of investigative agencies that are probing the clients of lawyers.

Lawyers are the butt of many a ridiculous joke — it is in the nature of things to laugh at oneself and not take oneself too seriously. Every single case involves an adversarial airing and canvassing of ideas, each of which may be attacked vociferously by the lawyers of the other parties in that case. That brings with it the ability to laugh at oneself and to have fun at one’s own expense.

But push that into shooting at the lawyer in a probe against the client, and it would be a recipe for a dystopian society. Utopia (a perfect society) is a mirage since it is tough to attain. But that does not mean one moves towards dystopia (the exact opposite of utopia), which is quite easy to attain.

This piece was published under the title Without Contempt in the editions of Business Standard dated October 10, 2019

The author is an advocate with a regulatory practice focus.