Are communications with Indian ‘Patent Agents’ privileged under the Evidence Act, 1872?

‘Client-Attorney’ privilege is one of those sacrosant principles of the common law system which protects the communications between a client and his attorney from disclosure to a third party, regardless of whether the third party is a court of law. In the context of the common law system, ‘client-attorney’ privilege is a significant exception to the rule. The ‘rule’, as such, of the common law system, requires both parties to disclose all possible information to the court so as facilitate the quest for justice and the ultimate truth. Without complete information it is unlikely that a court of law will ever be in a position to deliver a verdict that does justice to both parties. The concept of ‘client-attorney’ privilege therefore is a limited exception to the full disclosure requirement since it was felt that a client could be best advised by his attorney only when he made full and frank disclosures to his attorney and the only way to ensure this was to ‘privilege’ the communications between the client and the attorney.

Apart from ‘client-attorney’ privilege, the only other communications that are privileged are ‘spousal communications’ i.e. communications during the course of a marriage under Section 122 of the Evidence Act, 1872. The ambit of privilege has been deliberately kept to a limited circle since expanding it beyond a limited class of people would curtail the right to a free and fair trial. Given the implications of increasing the ambit of privileged communications such a decision is best left to the legislation and not an activist judiciary.

The Indian Evidence Act, 1872 codifies the concept of ‘client-attorney’ privilege in Sections 126 and 129.

S. 126 imposes a duty on any ‘barrister, attorney, pleader or vakil’ from disclosing any professional communications that he may have made or received from a client in the course of his professional employment. The reason this provision does not use the term ‘advocate’ is the fact that it was drafted in 1872 and the Advocates Act was enacted in the year 1961.

S. 129 is the provision which ‘privileges’ all professional communications between a client and his legal advisor against disclosure in a court of law. For the sake of convenience I reproduce the provision below:

129. Confidential communication with Legal Advisers – No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others.

This provision ensures that client-‘legal advisers’ communications cannot be summoned by a Court of Law in the course of discovery proceedings under Order 11 of the Code of Civil Procedure.

I. ‘Client-Attorney’ privilege in the context of the Indian ‘Patent Agent’

The qualifying criteria for practice as an Indian Patent Agent is set out in Section 126 of the Patents Act. The minimum qualifying critieria is a degree in science, engineering or technology after which a candidate is required to pass the qualifying exams conducted by the Controller General of the Patent Office. On having passed the exams this candidate is said to have qualified as a ‘Patent Agent’ who, as per Section 127, is entitled to practice before the Controller. Therefore a person without a degree in law is perfectly qualified to become a patent agent in India. The question now is whether all confidential communications between the patent agent and her client are protected from disclosure during the course of discovery proceedings either before a court of law or the Controller himself, who under Section 77, has the power to order discovery of documents.

II. Does Section 126 of the Evidence Act, 1872 apply to disclosures by Patent Agents?

As explained above Section 126 places on ‘barristers, attorneys, vakils, pleaders’ a duty to not disclose any professional communications that he may have had with his client. Given the fact that the Evidence Act was enacted in 1872 and not amended subsequently, it is necessary to explain that ‘barristers, attorneys, vakils and pleaders’ are not no longer prevalent in India. While ‘barrister’ has the same meaning as that in England, the remaining three terms i.e. ‘attorneys, vakils & pleaders’ are defined in the Legal Practitioners Act, 1879 and they necessarily have to be understood in context of that legislation and not given an ordinary dictionary meaning. This entire class of legal practitioners were replaced by the sole term ‘advocate’ through the enactment of the Advocates Act, 1961.

The qualifiying criteria for an ‘attorney’ in those days was decided by the High Courts in which the attorneys sought to practice. Originally under the Indian High Courts Act, 1861 there were only three High Courts located at Madras, Calcutta and Bombay. While I’m not sure about this I’ve read somewhere that these High Court used to conduct special exams to qualify for the title of an ‘attorney’.

Now although Section 126 does not mention ‘advocate’ the fact of the matter remains that Rule 17 of Chapter II, Part VI of the Bar Council of India Rules that were enacted under the Bar Council of India Act, prevent an advocate from breaching his obligations under Section 126 of the Evidence Act. Any breach of these obligations would render the ‘advocate’ liable for punishment and maybe even expulsion from the rolls of the bar council. Additionally it is most likely that Section 126 itself will be given a purposive interpretation to cover ‘advocates’ thereby rendering all such communications inadmissible in a court of law as evidence. Therefore even if an advocate were to unethically disclose such information it would not be possible to admit the same as evidence during the course of a trial.

Now lets come to the Indian ‘Patent Agent’. In your opinion would a ‘patent agent’ be covered under the definition on Section 126 of the Indian Evidence Act? Is there a statutory code of ethics prohibiting a ‘patent agent’ from disclosing professional communications which maybe later used as evidence in a ‘Court of Law’ or before the ‘Controller’? Of course such an act of unauthorized disclosure by a patent agent may result in a contractual violation but that in itself does not make the disclosure inadmissible in a Court of Law nor does it disqualify a patent agent from practicing or does it?

I would have loved to answer these questions over here but my concern is that, given the rather personal responses that I got to one of my previous posts on patent agents, the discussion may get hijacked by passion rather than reason. Instead I leave it our readers to provide the relevant answers in the comments section.
Given the small community of patent agents in India and the increasing migration between leading patent law firms, it is time that patentees asked these questions.

III. Does Section 129 of the Evidence Act, 1872 cover ‘Indian Patent Agents’?

Section 129 of the Evidence Act, 1872 as reproduced above states that a witness shall not be compelled to disclose any confidential communications that he may have had with his ‘Legal Professional Advisor’. The essential question over here is the ambit of the term ‘legal professional advisor’. Given the difference in wording between Section 126 and 129 i.e. Section 126 specifies a class of legal practitioners, it is possible to argue that Section 129 by using the generic term ‘legal professional advisor’, envisages a much broader category.

The above understanding however will have to be tempered by the fact that under Section 29 of the Advocates Act, 1961 only advocates are entitled to practice law in India. For sake of convenience I reproduce the provision here:

29. Advocates to be the only recognised class of persons entitled to practice law.
Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.
Advocates, as per the Advocates Act, 1961, need to be enrolled with Bar Council and the Bar Council requires all advocates to be law graduates i.e. hold a LLB degree, which can be acquired only after a three year course in a BCI recognized laa college.

The question therefore that requires to be answered in the context of patent agents is whether they would qualify as ‘legal professional advisor’, in light of the fact that only advocates can practice law in India?

If the answer to the above question is affirmative then in that case all communications between patent agents and their clients will be protected from disclosure during discovery proceedings. If the answer is negative then all communications between patent agents and their clients will be open to discovery proceedings under Order 11 of the CPC.

Conclusion: The World Intellectual Property Organization (WIPO) seems to have started work on a new international treaty to protect client-attorney privilege in the context of patent law. I’m not sure of the exact contours of the proposal but you can read up on the standing committee reports over here . I think the need of the hour is for patent agents to organize themselves and demand a statutory body to regulate themselves. An internet search reveals that there is an Patent Agents Association of India (PAAI). However given the fact that it does not seem to have statutory recognition it cannot regulate the profession itself.