How is ‘Attorney-Client Privilege’ governed in Bangladesh

In general terms, attorney-client privilege refers to a form of privilege that protects confidential communications between an attorney and a client that are made for the purpose of obtaining or providing legal advice from disclosure to third parties. In Bangladesh, rules for privileged communication are mostly encapsulated in Evidence Act, 1872. To be precise, sections 126-129 of the Evidence Act, 1872 deal with professional communications between the legal adviser and the client, which are protected from disclosure. Neither legal adviser or attorney nor his interpreter, clerk or even servant could be permitted to disclose any communications made to him in the course and for the purpose of professional employment of such legal adviser or to state the contents or condition of any documents with which any such person has become conversant in the course and for the purpose of such employment.

The aforementioned section 126 is not restricted to oral communications only but extends to facts observed by the pleader in the course of and for the purpose of his employment and that he is not bound to disclose them without the consent of the client. However, the privilege mandated by the Evidence Act, 1872 is not absolute. There are two specific restrictions when the client would not be covered by the attorney-client privilege. The first is when any such communication made in furtherance of any illegal purpose and the second is when any fact observed by the advocate in the course of his employment shows that a crime or fraud has been committed since the commencement of his employment. In these cases, the advocate would not need to obtain consent from the client prior to making any disclosure.

The privileges mentioned in the Evidence Act, 1872 are designed to secure the clients' confidence in the secrecy of their communication, in absence of which, providing legal services would become unfeasible. Legal provisions in most of the jurisdictions around the world typically provide for strict protection to clients in terms of confidentiality. In Bangladesh, section 126 uses strong language in imposing the prohibition, 'No Advocate shall… unless with the client's express consent'. Hence, the burden to keep information confidential is on the advocate, and there is no need for the client to expressly or impliedly claim the privilege.

A common follow up question in this discussion is whether attorney-client privilege may be extended to in-house counsel. Apparently, the above provisions of law are applicable on the advocates of Bangladesh. An advocate means an advocate entered in the roll under the provisions of the Bangladesh Legal Practitioner's and Bar Council Order, 1972. Pertinently, the Canons of Professional Conduct and Etiquette for lawyers in Bangladesh does not permit any advocate to engage in any other profession or business. Theoretically, if an advocate joins in the capacity of in-house counsel, he/she then must give up his/her enrolment with Bar Council and thus, the aforesaid provisions will no longer be applicable on him/her.

The Writer is a Barrister-at-Law, working as an Associate at Tanjib Alam and Associates.