Privileges of a Lawyer

The protection of the monopoly: sections 45 and 45A

A privilege can consist in others being kept out, and here two sections do that.

Section 45 punishes a person who practises in any court or before any authority or person when he is not entitled to do so, with imprisonment which may extend to six months.

Section 45A empowers courts and certain officers to frame and publish lists of touts and to exclude them from court precincts. It is dealt with in chapter [Touts, and the Monopoly of the Bar: Section 45A], and it is worth knowing that it is the newest section in the Act, inserted in 2023 and in force from 30 September 2024.

Indemnity: section 48

Section 48: "No suit or other legal proceeding shall lie against any Bar Council or any committee thereof or a member of a Bar Council or any committee thereof for any act in good faith done or intended to be done in pursuance of the provisions of this Act or of any rules made thereunder."

Read it carefully, because it is regularly mis-stated. This is not a privilege of advocates generally. It protects Bar Councils, their committees and their members when acting in good faith under the Act. So a member of a disciplinary committee cannot be sued for an order made in good faith. An ordinary advocate gets nothing from section 48.

The privileges that come from other laws

Professional communications

This is the privilege students think of first, and it is not in the Advocates Act. It is in the law of evidence.

Section 132(1) of the Bharatiya Sakshya Adhiniyam 2023 provides that 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 service 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 service, or to disclose any advice given by him to his client in the course and for the purpose of such service.

Four things a student must be able to say.

It belongs to the client. The section operates "unless with his client's express consent". The advocate cannot waive it and the client can.

It has exceptions. The section itself excepts a communication made in furtherance of any illegal purpose, and any fact observed by the advocate in the course of his service showing that a crime or fraud has been committed since the commencement of his service. The Adhiniyam's own illustration is of a client who tells his advocate that he has committed forgery and wishes to be defended.

It survives the engagement. The words are "at any time".

It is not the same as the ethical duty. The ethical duty of confidence is in rule 17 of the Bar Council of India Rules and binds the advocate towards his client; the evidentiary privilege binds the court, by making the advocate not compellable. Module II separates them properly.

Freedom of speech in court, and its limits

An advocate must be able to say things in court that would be actionable elsewhere, or he could not put his client's case. That protection comes from the general law rather than from the Advocates Act, and it is not unlimited.

Its limits are Module IV. Words spoken in court can be criminal contempt under section 2(c) of the Contempt of Courts Act 1971, as in Vishram Singh Raghubanshi v. State of Uttar Pradesh, AIR 2011 SC 2275, and they can be professional misconduct under section 35 of the Advocates Act at the same time. Module IV deals with the overlap.

Exemption from arrest, and appearance

Advocates are ordinarily allowed by courts to move about the precincts and to appear without formality, and there are protections in the general law relating to persons attending court. These are matters of practice and of other statutes rather than of the Advocates Act, and an answer should say so rather than attribute them to a section that does not exist.

What is NOT a privilege

This is where marks are gained, because the list of things students wrongly call privileges is short and predictable.

A lien on the client's papers is not a privilege. There is none. In R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, the Supreme Court held that litigation files are not "goods" within section 171 of the Contract Act and that an advocate has no lien over them for unpaid fees. He must return the file.

A right to strike is not a privilege. Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, holds that lawyers have no right to strike or to give a call for boycott, not even a token strike.

Immunity from discipline is not a privilege. Section 35 applies to every advocate.

Immunity from contempt is not a privilege. An advocate has no protection a citizen does not have; if anything the Court's expectations are higher, as In Re: Sanjiv Datta, (1995) 3 SCC 619, records.

Designation as a senior advocate is not a privilege. Section 16(3) subjects senior advocates to restrictions on their practice.

A worked example

Sunita is an advocate of eleven years' standing. Five things happen in one matter.

The Advocate-General appears in the same matter and both wish to address the court. Under section 23(4) the Advocate-General has pre-audience over all other advocates, subject only to the law officers of the Union named in sub-sections (1) to (3A). He goes first.

Her client tells her he forged the signature on the receipt. She may not disclose it. Section 132(1) of the Bharatiya Sakshya Adhiniyam 2023 stops her, unless the client expressly consents. But she also cannot use it: leading evidence she knows to be false would breach rule 4 of the Bar Council rules and, on the authority of Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, procuring false material is grave professional misconduct.

Her client asks her to help him fabricate a second receipt. The privilege does not attach. Section 132 excepts a communication made in furtherance of any illegal purpose.

Her fees are unpaid and the client asks for his file back. She must return it. R.D. Saxena holds there is no lien over the client's litigation papers.

A disciplinary committee later dismisses a complaint against her, and the complainant sues its members. Section 48 bars the suit: no legal proceeding lies against a Bar Council, its committee or a member for an act done in good faith in pursuance of the Act or the rules.

Quick revision

• A privilege is an advantage the law gives because of the office, and here it exists for the client or for the administration of justice.
• Section 23, pre-audience, in order: Attorney-General, Solicitor-General, Additional Solicitor-General, second Additional Solicitor-General, Advocate-General of a State (inter se by seniority), then senior advocates over other advocates, each group inter se by seniority.
• Section 30: the right to practise throughout India, in force from 15 June 2011.
• Sections 45 and 45A protect the monopoly; section 45 punishes unauthorised practice with imprisonment up to six months.
• Section 48, indemnity: protects Bar Councils, their committees and their members for acts done in good faith under the Act. It is not a protection for advocates generally.
• Section 132(1), Bharatiya Sakshya Adhiniyam 2023: professional communications privilege. It belongs to the client, lasts at any time, and does not cover a communication in furtherance of an illegal purpose or a fact showing a crime or fraud committed since the service began.
• NOT privileges: a lien on the client's papers (R.D. Saxena), a right to strike (Harish Uppal), immunity from discipline or from contempt, and designation as a senior advocate, which brings restrictions under section 16(3).

Test yourself

1. State the order of pre-audience under section 23. The Attorney-General of India, then the Solicitor-General, then the Additional Solicitor-General, then the second Additional Solicitor-General, then the Advocate-General of a State with Advocates-General inter se by seniority, and thereafter senior advocates over other advocates, each group inter se by seniority.

2. Whom does section 48 protect? A Bar Council, any committee of it, and a member of a Bar Council or of any such committee, against any suit or other legal proceeding for an act done or intended to be done in good faith in pursuance of the Act or the rules made under it. It does not protect advocates generally.

3. Whose privilege is the privilege attaching to professional communications, and what is its statutory source now? The client's. Section 132(1) of the Bharatiya Sakshya Adhiniyam 2023 provides that no advocate shall at any time be permitted, unless with his client's express consent, to disclose such a communication. The advocate cannot waive it; the client can.

4. Give two situations in which that privilege does not apply. Where the communication was made in furtherance of an illegal purpose, and where the fact was observed by the advocate in the course of his service and shows that a crime or fraud has been committed since the commencement of his service.

5. Does an advocate have a lien over his client's papers for unpaid fees? No. In R.D. Saxena v. Balram Prasad Sharma the Supreme Court held that litigation files are not goods within section 171 of the Contract Act, that keeping them does not amount to goods bailed, and that there is therefore no lien.

6. Is designation as a senior advocate a privilege? Not in the sense of an additional right. Section 16(2) calls it a distinction, and section 16(3) subjects senior advocates in the matter of their practice to restrictions prescribed by the Bar Council of India, so it operates as a limit on what the advocate may personally do.