No Summons to Advocates Without Legal Grounds: ED Issues Strict Directive

The Enforcement Directorate (ED) has recently issued a circular regarding the guidelines for summoning legal practitioners or advocates, or lawyers. The circular instructs that field formation cannot issue summons to lawyers or advocates, or legal practitioners during a money laundering investigation, to share any private communications and documents or their client, except for a few conditions.

These guidelines were released after two Senior Advocates were issued summons. Senior Advocate Pratap Venugopal was summoned for legal advice given by him to Care Health Insurance about the Employee Stock Option Plan (ESOP) granted to former Religare Enterprises Chairperson Rashmi Saluja. However, these summons were later withdrawn by ED.

As per the latest guidelines, under section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA, 2023), Lawyers cannot be forced to share or disclose any communication made to them in a legal course without the consent of their client.

“132. (1) Νο 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..”

However, there are some exemptions to the above section. These are as follows:

• If the communication was made for illegal purposes or for doing an illegal practice, then it can be disclosed.
• If the lawyer or advocate observes a crime or fraud happening during their service, they must disclose that.

The obligation mentioned in section 132 continues even after the lawyer’s service has ended for the client.

For Example: 

• If a client says to an advocate that he has committed a crime and asks to defend him, then this communication must be protected from being shared.

• However, if the client asks the lawyer to help them commit a crime, such as suing using a fake contract to acquire a property, then such communication must not be protected, as this communication is made for a criminal purpose.