Equivocal comments about in-house lawyers in India and their attorney-client privilege

Without attorney-client privilege, law departments can’t compete equally with outside counsel. Retrograde jurisdictions fail to provide that powerful shield (See my post of April 25, 2011 #1: narrow rejection of privilege in Europe.).

By law, salaried lawyers of an Indian company are barred from representing their client in court. That would be a minor wound. But here is the killer: “It has been suggested in some cases that communications or legal advice generated by ‘qualified legal professionals’ (in other words, someone with a current practicing certificate) from the internal law department of a company should be protected under Indian Evidence Law.” Does that mean obiter dictum “suggests” the privilege holds? This equivocal summary of the privilege, from Amarchand & Mangaldas in Practical Law Global, Spring 2011 at 52, ends clearly on a note of absolute uncertainty: “That said, the position concerning communications of in-house lawyers is still unclear.”

In Japan, by contrast (Herbert Smith at 55), in-house lawyers enjoy the same privileges as external counsel so long as they are a Bengoshi or a Gaikokuho Jimu Bengoshi. The commentary notes intriguingly that “In Japan, there are many legal department in Japanese companies with in-house lawyers who are not qualified lawyers.”