Are in-house counsel entitled to attorney-client privilege? Supreme Court answers
Full-time salaried company lawyers are not “advocates” under law and cannot claim attorney–client privilege under Section 132 of Bharatiya Sakshya Adhiniyam
The Supreme Court has clarified that in-house counsel employed full-time by corporates or companies do not qualify as “advocates” under Indian law and, consequently, cannot claim the protection of attorney–client privilege under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA).
The ruling came in the case concerning the summoning of advocates who provide legal opinion or represent parties during investigations, where the Court examined the distinction between an advocate and a lawyer. It reaffirmed that only those enrolled with State Bar Councils and practising independently enjoy the privilege of confidential communication with clients.
Full-time salaried lawyers, aka in-house counsel, lack the requisite independence since they are part of the employer’s hierarchy. As such, their communications, while confidential, do not enjoy statutory protection of attorney–client privilege as understood under the BSA. This judgment underscores the fundamental difference between the legal profession’s advocacy role and internal corporate legal advisory functions.