© Copyright Lex Mundi, Ltd.

2007

In-House Counsel and the Attorney-Client Privilege

INDIA
Amarchand & Mangaldas & Suresh A. Shroff & Co.

CONTACT INFORMATION
Shardul S. Shroff
Amarchand & Mangaldas & Suresh A. Shroff & Co.
Amarchand Towers, 216 Okhla Industrial Estate, Phase – III
New Dehli, 110 020, India
Tel : 91.11.26920500/ Fax : 91.11.26924900
Shardul.shroff@amarchand.com
www.amarchand.com

In India, professional communications between attorneys and clients are protected as

‘privileged communications’ under the Indian Evidence Act, 1972 (the “Evidence Act”).
This attorney-client privilege as stated in the Evidence Act provides that no attorney shall
be permitted to:

i. disclose any communication made to him in the course of or for the purpose of his
employment as such attorney, by or on behalf of his client;
ii. state the contents or condition of any document with which he has become
acquainted in the course of and for the purpose of his professional employment;
or
iii. disclose any advice given by him to his client in the course and for the purpose of
such employment.
This attorney-client privilege continues even after the employment has ceased. However,
there are certain limitations to the aforesaid privilege and the law does not protect the
following from disclosure:
i. disclosures made with the client’s express consent;
ii. any such communication made in furtherance of any illegal purpose; or
iii. any fact observed by any attorney in the course of his employment, showing that
any crime or fraud has been committed since the commencement of his
 © Copyright Lex Mundi, Ltd. 2007
employment. It is immaterial whether the attention of the attorney was or was not
directed to such fact by or on behalf of his client.
An in-house counsel, being in the full-time employment of a person, is not recognized as
an ‘attorney’ under Indian Law. Thus, professional communications between an in-house
counsel and officers, directors and employees of a company are not protected as
privileged communications between an attorney and his client, as stated above. In other
words, to invoke the privilege, the communications must necessarily be made or received
by an ‘attorney’. However, in practice the employment contract of an in-house counsel
usually contains a confidentiality clause protecting any information disclosed to such
counsel during the course of his employment. Though this confidentiality clause is not
similar in nature to a ‘privileged communication’, subject to certain contractual
exceptions, a client will be entitled to claim damages from the in-house counsel in the
event of breach of such a confidentiality clause.