BSA Section 132 — Professional communications
CHAPTER IX OF WITNESSES
General
Summary
Sub-section (1) states that an advocate is never allowed to disclose, without the client's express consent, any communication made to the advocate by or on behalf of the client during the course of and for the purpose of the advocate's service. The advocate also cannot state the contents or condition of any document they became acquainted with during such professional service, nor disclose any advice they gave to the client in that same course and purpose.
The proviso to sub-section (1) says that this protection from disclosure does not apply to two kinds of matters: (a) any communication made in furtherance of any illegal purpose; and (b) any fact observed by the advocate during their service that shows a crime or fraud has been committed since the start of that service.
Sub-section (2) clarifies that it does not matter whether the client or someone on the client's behalf directed the advocate's attention to the fact mentioned in the proviso to sub-section (1). The fact is still not protected from disclosure regardless of how the advocate became aware of it.
The Explanation states that the obligation to keep communications confidential continues even after the professional service has ended.
The Illustrations give three examples. In illustration (a), a client tells an advocate they have committed forgery and asks the advocate to defend them, and this communication is protected because defending a known guilty person is not a criminal purpose. In illustration (b), a client asks an advocate to sue using a forged deed to obtain property, and this communication is not protected because it furthers a criminal purpose. In illustration (c), an advocate observes an entry in a client's account book during proceedings that shows a fraud was committed after the service began, and this fact is not protected from disclosure.
Sub-section (3) states that the provisions of this section also apply to interpreters and to the clerks or employees of advocates.
Official Text
(1) No advocate, 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 service as such advocate, 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 service, or to disclose any advice given by him to his client in the course and for the purpose of such service:
Provided that nothing in this section shall protect from disclosure of—
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.
(2) It is immaterial whether the attention of such advocate referred to in the proviso to sub-section (1), 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 professional service has ceased.
Illustrations.
(a) A, a client, says to B, an advocate— “I have committed forgery, and I wish you to defend me”. As the defence 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, an advocate— “I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an advocate, 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 professional service. This being a fact observed by B in the course of his service, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
(3) The provisions of this section shall apply to interpreters, and the clerks or employees of advocates.
