Yes. The protection under Indian law is provided in two ways. A lawyer is not permitted to disclose ACP communication, and the client cannot be compelled to dislose ACP communication.

ACP applies to communications made between a lawyer and his/her client in the course of the lawyer's engagement by the client. ACP is statutorily recognized in India as a principle of law of evidence. Under Indian Evidence Law, no lawyer is permitted, except with the express consent of the client, to (i) disclose any communications made to the lawyer in the course of and for the purpose of employment as a lawyer; or (ii) state the contents or condition of any document with which the lawyer has become acquainted in the course of and for the purpose of professional employment; or (iii) disclose any advice given by the lawyer to the client in the course of and for the purpose of such employment.

The Indian Advocates Act 1961 (the "Advocates Act"), and the rules framed thereunder which govern and regulate legal practitioners in India, and the Bar Council of India ("BCI") Rules specifically prohibit advocates from breaching their obligations under the rules of privilege set out above.

ACP will continue even after the lawyer-client relationship has ceased.

ACP does not apply if (a) the relevant communication was made in furtherance of any illegal purpose, or (b) the lawyer detects in the course of his/her employment that a crime or fraud has been committed since the commencement of his/her employment.

The Indian Evidence Act also protects the clients’ confidential communications with legal advisers. The client cannot be compelled to disclose to the Court any confidential communication which has taken place between the client and the legal professional adviser. However, if the client offers himself/herself as a witness, he/she may be compelled to disclose any such communications as may appear to the Court necessary to explain any evidence which he/she has given, but no others.

Not applicable. 

In civil proceedings, privileged documents are exempt from production and are inadmissible as evidence. The party asserting privilege in response to an application for inspection or to produce the relevant document for the court's inspection can call upon the court to decide whether the claim for privilege is valid. In civil proceedings, a request for interrogatories (i.e. disclosure of a certain document) may be denied on the grounds of privilege, but subject to the court’s decision in this regard.

Applying the general ACP rules, the same would apply to defense attorneys and clients with regard to engagement and the legal advice given in the course of the engagement.

In criminal matters, there is a distinction between court proceedings and investigation. In an investigation when a person is summoned to produce documents, he/she may be bound to produce all documents (including which may be privileged). The investigating authority may require the production of documents that may have come into existence by way of legal advice received in the past. There is no clear rule in this regard, but the Code of Criminal Procedure which applies to investigations does not provide an exception for any ACP-related documentation. However, when it comes to admissibility in a court, it may be argued that ACP communication is inadmissible as evidence against the accused based on the Indian Evidence Act. The validity of any such objection on grounds of privilege will be decided by the court. In criminal proceedings, the court has a wide discretion to order the production of any document it considers necessary or desirable for the purpose of any inquiry, trial or other proceedings.

In both civil and criminal proceedings, if the court decides that a privileged document should be disclosed, privilege is lost and is no longer available.

There are no definite tests or rules to determine who within a corporation is considered a client for the purposes of ACP. Under Indian Corporate Law, a company is managed ultimately by the Board of Directors and key management personnel.

There is further ambiguity with regard to the application of ACP even to general counsel or the internal legal department of a corporation.

There is no clarity that professionally qualified lawyers employed by a corporation in its internal legal department would have the benefit of ACP in its dealings with the corporation. No particular test has been formulated, whether through statutory law or case law, to determine the applicability of ACP for internal legal departments of corporations. In the normal course, the corporation, being a separate legal entity, would be treated as the client. However, difficulty may arise as to determine who within the corporation is considered as a client for the purposes of ACP.

It is advisable that the retainer agreement with the attorney must provide for clear lines of communication and adequate safeguards must be in place to maintain confidentiality and privilege with the designated employees of the corporation who shall be sharing privileged communication.

The rules applicable to Indian advocates, specifically provides that an advocate cannot be employed by a corporation and also retain the status of an advocate under the Indian Advocates Act, inasmuch as in-house counsels are not allowed to be active members of the bar. The Bar Council of India Rules provides that lawyers employed with a corporation, are under an obligation to relinquish their registration as an advocate (i.e. relinquish their position as an active member of the bar). This would mean that in-house counsels may not have the protection of ACP. Accordingly, it is not the case in India that in-house counsel is expected to meet a higher burden than outside counsel because the in-house counsel is not treated in law as an active practicing member of the bar. But it is always advisable to have a clear separation of tasks done by in-house counsels in their capacity of legal professional adviser as distinct from other tasks which may not be done in the capacity of a legal professional adviser. Hence, it is recommended that in-house counsels clearly separate documents that are made in anticipation of litigation, and mark it as made in anticipation of litigation by the internal legal department of the corporation of which the in-house counsel is a part. As stated above, it is unclear whether communication between in-house counsels and their employer could be protected by ACP, and the same would depend on a number of factors on a case-to-case basis. It is reiterated that the benefit of absolute ACP would not be available to in-house counsels merely due to the reason that they are legal advisers to the corporation and employed by the corporation. 

The ACP would come into play when the in-house counsel communicates with outside counsel. Thus it may be necessary to bring in-house counsel material within the ambit of ACP through the engagement of outside counsel on particular matters. Till such a point of involvement of outside counsel and the material is clearly segregated which forms confidential communication with the outside counsel, it may be very difficult to claim ACP for such material.

Not applicable to India. 

Not applicable to India.

No. the common interest doctrine is not recognized in India. 

Not applicable. 

Not applicable. 

Funding of litigation by advocates in India is impermissible. However, there appears to be no restriction on third parties (non-lawyers) funding the litigation and getting repaid after the outcome of the litigation. However the law in India with regard to third-party funding is at a nascent stage, and the scope and extent have not been fully tested by the courts.

There have been no instances where a Court or Tribunal has taken a categorical view on third-party funding vis-à-vis attorney-client privilege.

ACP does not apply if (a) the relevant communication was made in furtherance of any illegal purpose, or (b) the lawyer detects in the course of his/her employment that a crime or fraud has been committed since the commencement of his/her employment.

Section 126 of the Indian Evidence Act, 1872 carves out the crime/ fraud exception to attorney-client privilege.

The Indian Evidence Act at Section 129, protects confidential communications which have taken place between a person and his legal professional advisor. As explained above lawyers employed by corporations may not have the protection of ACP with regard to their advice to the corporation. But communications with a legal professional advisor by the client are protected. Thus, if the information is obtained by lawyers in the course of his engagement or documents are exchanged which are prepared in anticipation of litigation may be brought within the scope of confidential communication under Section 126 and Section 129 of the Indian Evidence Act. Thus, the work product doctrine would apply, as far as the advocate's legal advise is concerned, and documents prepared in anticipation of litigation by the client would be protectable under ACP if it is communicated to the advocate. An interplay of Section 126 and 129 of the Indian Evidence Act would thus apply to protect such communication, provided outside counsels are involved.

Indian rules of ACP would broadly cover the following:

1. Work Product prepared by an advocate for the client
2. Documents prepared by an advocate in anticipation of a litigation
3. Documents prepared jointly by the advocate and the client in anticipation of litigation, and
4. Documents prepared by the client in anticipation of litigation if the same are communicated to the advocate and intended to be privileged.

However, there are no statutory rules in this regard and as a general practice, all work product and Litigation-related documents ought to be marked as privileged and confidential to ensure protection under ACP.  

No. 

No. However, most mediations take place in a confidential setting and it is without prejudice to either party's right to litigation. To such an extent, material and discussions in mediations may not be acted upon by courts.

No. See the answer above.