Attorney-Client Privilege and the Constitutional State: Liberty’s Last Refuge in the Age of Surveillance

Introduction: A principle under siege

Confidentiality between a lawyer and a client lies at the heart of the adversarial system. It ensures complete trust — enabling even the accused or marginalised to confide without fear of reprisal. Attorney-client privilege is thus not a mere evidentiary rule but an institutional guarantee of fairness, equality, and dignity before law.

Across democracies, however, this principle is under siege. The modern regulatory State increasingly seeks to compel lawyers to report, surveil, or disclose client information in the name of compliance. From the United States to India, the dilemma persists: Can liberty and legality coexist when the right to counsel itself becomes conditional upon State supervision?

Historical roots: From common law to continental Europe

1. England: The birth of the doctrine

Attorney-client privilege first appeared in 16th century England as a matter of professional honour rather than client right. In Berd v. Lovelace¹ (1577), courts acknowledged that a barrister could not betray client confidences. By the 18th and 19th centuries, privilege matured into a client’s right — integral to due process and the Rule of Law.

English common law viewed confidentiality as indispensable to effective defence. Without it, justice would devolve into coercion. The principle thus became inseparable from the moral and procedural foundations of the adversarial system.

2. The United States: Constitutionalising confidentiality

In America, privilege evolved from professional ethics into a constitutional protection. The Fifth Amendment (against self-incrimination) and the Sixth Amendment (right to counsel) together anchor the doctrine. In Hickman v. Taylor², the US Supreme Court developed the “work product doctrine”, while Upjohn Co. v. United States³ extended the privilege to corporate communications.

American jurisprudence treats the privilege as a shield for liberty — compelling disclosure of confidential advice is tantamount to compelled self-incrimination. It is therefore a structural guarantee of due process, not a procedural convenience.

3. France and Germany: Civil law perspectives

France recognises secret professionnel as a criminal prohibition against breaching legal confidentiality under Articles 226-13 of the Code Pénal and the Code de Procédure Pénale. It extends beyond courtrooms, reflecting the Republic’s conception of justice as dependent on the lawyer’s duty of silence.

In Germany, the Berufsgeheimnis (professional confidentiality) is constitutionally protected under Section 203 of the Strafgesetzbuch and Section 43a of the Bundesrechtsanwaltsordnung. Rooted in the Rechtsstaat (constitutional state) and Würde des Menschen (human dignity), it ensures that no lawyer can be forced to act as a State informant. German constitutional jurisprudence views this privilege as an extension of the right to dignity under Article 1 of the Grundgesetz.

Philosophical foundations: Liberty, dignity, and the right against self-incrimination

At its core, attorney — client privilege expresses human dignity and autonomy. Justice, in this sense, cannot be coerced; it must emerge through free, rational dialogue between individual and counsel.

The right against self-incrimination — nemo tenetur se ipsum accusare (no one is bound to accuse himself) — embodies this ethos. As the US Supreme Court declared in Boyd v. United States⁴, compelling a person to betray his confidence “is contrary to the principles of a free government”. Later, in Miranda v. State of Arizona⁵, the Court reaffirmed that the State cannot weaponize an individual’s words against them absent procedural safeguards.

Attorney-client privilege operationalises these rights. It is the environment within which liberty breathes — without it, the individual’s defence collapses, and justice yields to intimidation.

The evolution of the State: From police state to constitutional state

The justification for privilege must be situated within the political evolution of governance itself.

The police state (Polizeistaat) of early modern Europe viewed citizens as subjects to be controlled, not protected. Law functioned as an instrument of discipline, not justice. The welfare state of the 20th century, though benevolent, expanded administrative discretion and surveillance under the pretext of collective welfare.

The constitutional state (Rechtsstaat), by contrast, represents restraint — power bounded by rights. In such a State, attorney-client privilege operates as a constitutional firewall against executive encroachment. To erode it is to regress toward the police state, where even counsel becomes an arm of coercion.

The Indian evolution: From colonial import to constitutional right

1. Colonial foundations

Attorney-client privilege entered Indian law through colonial codification. Sections 126–129, Evidence Act, 1872 prohibit lawyers from disclosing communications made during professional employment. The Victorian rationale emphasised courtroom integrity rather than personal liberty.

Similarly, the Legal Practitioners Act, 1879 (and later the Advocates Act, 1961) institutionalised the ethical duty of confidentiality. These early formulations were professional, not constitutional — aimed at procedural propriety rather than protection from State intrusion.

2. Post-independence reinterpretation

The Constitution transformed this conception. Article 20(3) protects against self-incrimination, Article 21 guarantees life and liberty, and Article 22(1) secures the right to consult a lawyer. Together, they constitutionalised confidentiality as an element of fair trial and procedural justice.

Though the Evidence Act remains the statutory base, courts began harmonising it with these rights, elevating privilege from an evidentiary rule to a constitutional safeguard. Finally, Section 132, Sakshya Adhiniyam, 2023 (BSA) also extended this principle.

3. Judicial development

Judicial recognition gradually reinforced this link. In CBI v. Rajesh Gandhi⁶, it warned that investigative zeal cannot override fair procedure. In R.M. Malkani v. State of Maharashtra⁷, the Court condemned unauthorised recordings as a violation of privacy.

Through these rulings, the Court transformed privilege into a living constitutional right — shielding both counsel and citizen from coercive intrusion.

The United Nations framework: Privilege as an international human right

Attorney-client privilege now stands recognised as part of international human rights law. The United Nations system enshrines it through multiple instruments linking confidentiality to fair trial and due process.

1. The ICCPR (1966)

Article 14 of the International Covenant on Civil and Political Rights guarantees the right to communicate with counsel “without interference”. The UN Human Rights Committee’s General Comment No. 32 (2007) explicitly interprets this to include confidentiality. Any State interference, except through proportionate and judicially supervised means, violates Article 14.

2. UN basic principles on the role of lawyers (1990)

Principle 22 declares:

“Governments shall recognise and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”

Principles 16-18 and 23 further protect lawyers from intimidation or sanction for performing professional duties. Collectively, these norms establish confidentiality as a matter of legal obligation, not professional courtesy.

3. International Criminal Tribunals and the ICC

The International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Criminal Court (ICC) have uniformly recognised this privilege. Article 67(1)(b) of the Rome Statute affirms the right of the accused “to communicate freely with counsel in confidence”. These precedents universalise confidentiality as integral to human dignity and defence.

4. Contemporary UN concerns

Recent UN Special Rapporteurs have cautioned against erosion of this privilege through surveillance and AML obligations. The 2021 Report⁸ observed that mass interception and data retention laws “erode the very trust that sustains the legal profession”. The UN thus urges legislative and technological safeguards to preserve confidential exchanges.

5. The UN vision of balanced legality

Together, these instruments yield a unified jurisprudence:

(a) Privilege derives from the right to fair trial and effective defence.

(b) States have a positive duty to protect it.

(c) Interference is permissible only under necessity, proportionality, and judicial supervision.

The global order thus recognises that trust — not transparency — is the foundation of justice.

Modern challenges: AML laws, compliance regimes, and global surveillance

The 21st century’s compliance regimes have blurred the line between advocate and investigator. The Financial Action Task Force (FATF) framework obligates professionals, including lawyers, to report suspicious transactions — effectively deputising them as State agents.

1. India: The 2024 Supreme Court ruling

In Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases, In re (2024), the Supreme Court held that lawyers cannot be treated as “reporting entities” under the Prevention of Money Laundering Act (PMLA). Doing so, it ruled, would violate Articles 20(3), 21, and 22(1) — the rights against self-incrimination, to liberty, and to counsel.

The judgment reaffirmed that confidentiality is constitutional, not conditional. By insulating lawyers from State deputation, the Court preserved the adversarial system’s integrity.

2. Comparative developments

In the United States, post-9/11 surveillance laws such as the Patriot Act raised fears of indirect breaches of privilege. Cases like Kellogg Brown & Root, In re⁹ and Zubulake v. UBS Warburg LLC¹⁰ illustrate ongoing tension between compliance and confidentiality.

In the United Kingdom, under the Proceeds of Crime Act, 2002, lawyers must report suspicious activities, yet pure legal advice remains protected. The decision in SRA v. Alistair Brett¹¹ highlighted this ethical tightrope.

In France, Michaud v. France (ECHR)¹² affirmed that while privilege is not absolute, State interference must be narrowly tailored and judicially supervised.

Globally, courts grapple with the same paradox — how to regulate without eroding the moral architecture of justice.

The way forward: Towards a balanced jurisprudence

The future of attorney-client privilege depends on constitutional calibration, not absolutism.

1. Privilege as a constitutional right

Courts must explicitly recognise privilege as an element of constitutional liberty — linked to privacy, fair trial, and dignity. In India, this arises naturally under Articles 20(3) and 21; in Europe, under Articles 6 and 8 of the ECHR; and in the US, under the Fifth and Sixth Amendments.

2. Judicial oversight of exceptions

Any invasion of privilege must be judicially sanctioned. Searches, seizures, or surveillance of privileged material require independent supervision — akin to the “special master” system in US Federal Courts.

3. Distinguishing advice from facilitation

Lawyers involved in criminal acts may forfeit privilege, but representation alone cannot justify intrusion. As recognised in Three Rivers District Council v. Governor and Co. of the Bank of England¹³, the line between advice and complicity must remain constitutionally sharp.

4. Professional independence and ethics

Bar Councils must enhance training in AML compliance without reducing lawyers to State informants. Advocates are officers of the court — not extensions of executive machinery.

Conclusion: Liberty’s last confidential refuge

Attorney-client privilege is not a vestige of professional etiquette; it is the living spirit of constitutionalism. It marks the civilisational boundary between coercion and consent, between the police state and the Rule of Law.

Every dilution of this privilege — through surveillance, regulatory zeal, or bureaucratic suspicion — chips away at the moral foundation of justice. The Supreme Court’s ruling stands as a reminder that liberty cannot be collateral damage in the pursuit of order.

The dialogue between lawyer and client is the last private space left in a monitored world. To protect that space is to preserve not only the profession but democracy itself. Where the citizen can still whisper in confidence, the Rule of Law still lives.