Sunday Times 2
Why lawyers can’t reveal a client’s whereabouts
View(s):- Niroshan Pathberiya, Attorney-at-Law, explains the untouchable shield of attorney-client privilege
Last week, former Inspector General of Police (IGP) Deshabandu Tennakoon once again grabbed headlines—this for filing a writ petition with the Court of Appeal seeking to block his arrest. The petition requested an interim injunction against the warrant issued by the Matara Magistrate’s Court in connection with a 2023 shooting incident.
As the news spread, a recurring question began surfacing in public discussions and on social media: Why can’t the police just arrest his lawyers and make them reveal his whereabouts? The short answer is: No! Why? Because the law says so. The longer answer—which we are about to unpack—delves into the bedrock principles of justice, attorney-client privilege, and the strict legal boundaries that protect the integrity of legal representation.
The relationship between a lawyer and a client is one of utmost confidentiality and is protected by law. The Sri Lankan Constitution guarantees the right to legal representation under Article 13(3), which states that any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court. Additionally, Section 41 of the Judicature Act No. 02 of 1978 ensures that every attorney-at-law has the right to assist and represent clients before any court or tribunal. This provision establishes legal representation as a fundamental right, ensuring fair access to justice.
In the recent fundamental rights case, Wijesundara Mudiyanselage Naveen Nayantha Bandara Wijesundara v. Sirwardena and Others (SCFR 13/2019), Supreme Court Justice Preethi Padman Surasena affirmed that the legal profession is indispensable for the administration of justice, the rule of law, and the proper functioning of society. Without lawyers, citizens cannot assert their rights effectively. This underscores that a strong, trust-based lawyer-client relationship is essential for the effective administration of justice.
When a client reaches out to a lawyer in a legal matter, they are initiating a process to secure representation and pursue a remedy through the judicial system. Once a lawyer is retained by a client, a professional contract is established. As held in Daniel v. Sarala Chandradeva (1994) 2 SriLR, this relationship extends beyond a mere contract, permitting the lawyer to receive confidential instructions from the client to represent their interests effectively. Confidentiality is a cornerstone of this relationship. The Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules 1988 (Gazette Extraordinary 537/7 of 07.12.1988) impose strict obligations on attorneys to safeguard client information.
Rules 31 to 38 of the Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules 1988 specifically stipulate that all client information, whether oral, documentary, or digital, must be kept in strict confidence and cannot be disclosed without the client’s explicit or implied written consent. Even after the attorney ceases to represent the client—or after the client’s death—the duty of confidentiality remains intact. In law firms, all partners and associates must adhere to these obligations.
Similarly, Sections 126, 127, and 129 of the Evidence Ordinance No. 14 of 1895 further reinforce these protections. Section 126 prohibits attorneys from disclosing any communications made by their clients in a professional capacity, while Section 127 extends this prohibition to interpreters, as well as clerks and servants of attorneys-at-law and notaries. Additionally, Section 129 safeguards confidential communications from being compelled as evidence in court.
Consequently, any discussion of such matters—even among legal professionals—is strictly prohibited unless expressly permitted by law. Disclosing privileged client information to the police would be a direct violation of these provisions, potentially resulting in serious professional and legal consequences for the attorney involved.
While attorney-client privilege is extensive, there are a few exceptional circumstances where disclosure is permitted. Rule 38 of the Supreme Court Rules (1988) allows disclosure only in cases where:
The attorney must defend against allegations of misconduct.
Disclosure is necessary to prevent the commission of a crime or fraud.
There is a joint retainer, and information must be shared among those with joint interests.
Sections 126 and 129 of the Evidence Ordinance provide further exceptions, allowing disclosure if the communication was made to further an illegal purpose or if the attorney observes facts indicating that a crime or fraud has been committed after their engagement. However, even in these instances, disclosure is strictly limited to the necessary information.
As highlighted in Bullivant v. Attorney General of Victoria (1901 AC 196), attorney-client privilege is essential for fostering open and honest communication—an indispensable element in the proper administration of justice. Lawyers are bound by stringent ethical and legal obligations to safeguard client confidentiality. Neither the police nor any other entity, including the media, has the authority to compel a lawyer to disclose privileged communications. Any attempt to force such disclosure would not only be unethical but would also constitute a grave violation of professional conduct, potentially jeopardising a lawyer’s career.
This privilege serves as a cornerstone of our legal system, ensuring that clients can seek legal assistance without fear of exposure or reprisal. Arresting lawyers to extract confidential client information would not only be unlawful but would also undermine the very foundation of the legal system and erode public trust in the rule of law. Upholding attorney-client privilege is crucial for maintaining the balance between state authority and individual rights, and it remains central to ensuring a fair and impartial legal process.
(*Special thanks to President’s Counsel Kalinga Indatissa for his invaluable insights.)