05 March 2010
Although there is no prohibition in India for a lawyer to record the voice of his client while in his chamber narrating the case brief but the lawyer is not permitted to disclose the contents of such voice except with the express consent of his client as provided under section 126 of the Indian Evidence Act, 1872.
Section 126 of the Indian Evidence Act, 1872 is reproduced as under:
"126. Professional communications - No barrister, attorney, pleader or vakil, 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 barrister, pleader, attorney or vakil, 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 communication made in furtherance of any illegal purpose,
2. Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil 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.
(a) A, a client, says to B, an attorney - "I have committed forgery and I wish you to defend me."
As the defense of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to B, and attorney - "I wish to obtain possession of property by the use of forged deed on which I request you to sue."
The communication being made in furtherance of criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement retains B, an attorney to defend him, In the course of the proceedings B observes that an entry has been made in A's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure."