One of the crucial aspects of the relationship between a lawyer and clients is the attorney client privilege. It means that the communications between the lawyer and clients cannot be forced to disclose. It assures the client that s/he can disclose all material facts to the lawyer and it will not be disclosed and used against him/her in any court. If any client discloses any confidential information to his/her lawyer, the lawyer cannot disclose that information. Such candid disclosure enables the lawyer to provide better advice and representation to the client. If such protection was not provided, it would force any person to think twice before disclosing any unfavorable facts to the lawyer. Which would ultimately hamper the person’ right to obtain a candid legal advice from his/her lawyer. It is one of the core characteristics of the lawyer – client relationship.
Provisions in Bangladesh laws:
In Bangladesh, the Evidence Act 1872 deals with the attorney client privileges. Section 126 to 129 deals with it.
Section 126: No Advocate 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 Advocate 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 Advocate, in the course of his employment as such, showing that any crime of fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such Advocate 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.
Section 127. The provisions of section 126 shall apply to interpreters and the clerks or servants of Advocate.
Section 128. If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and, if any party to a suit or proceeding calls any such [Advocate] as a witness, he shall be deemed to have consented to such disclosure only if he questions such [Advocate] on matters which, but for such question, he would not be at liberty to disclose.
Section 129. No one shall 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 communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.
I have summarized the key points for you –
1. The protection is provided to client, not lawyer. A lawyer cannot disclose any information which s/he obtained from the client.
2. Unless one person becomes a client, the protection is not allowed. So, there must be some kind of agreement for legal service between the person and the lawyer. Otherwise the lawyer or the person cannot claim the protection of the privileges offered in these sections.
3. The protection is provided for all communication. Any communication between the client and the lawyer is protected under these sections. Documents are also covered. A lawyer cannot disclose the content of any documents of any client. Any written legal advice, email would also be protected.
4. The protection will end if the clients provided his/her consent to the lawyer to disclose the communications. The privileges are not waived by volunteering evidence by any client.
5. The privileges are also applicable to lawyers’ support staffs, interpreters.
6. The privileges are only allowed for lawyers who are license to practice in Bangladesh by Bangladesh Bar Council.
7. The privileges will not cover any future illegal works that has been committed after the relationship between the lawyer and client initiated.
What about in house counsel:
The status of in house legal counsel regarding attorney client privileges is not clear under the Bangladeshi laws. Technically an in house legal counsel is not an advocate. Canons of Professional Conduct and Etiquette for lawyers in Bangladesh does not permit any lawyer to engage in any other profession or business. But the law requires the attorney client privileges is only applicable to advocates. So, it is not clear whether an in house counsel would get the same treatment as advocates or not for attorney client privileges.
I personally feel that in house counsel should receive the same benefit as independent advocates. Otherwise, their employer may not get their best advice in legal matters, for which they are hired.