Certain information and documents obtained during the investigations of the Competition Board ("Board") may be based on the attorney-client relationship. The extent of the information and documents based on an attorney-client relationship that is protected within the framework of the confidentiality principle is important. This article explains the concept of legal professional privilege under Turkish law, and reviews two significant decisions by the Board in this regard.
Legal Professional Privilege under Turkish Law
In order to have an overview of the concept of legal professional privilege and the legal protection that it brings with it, we should first consider the relevant provisions of the applicable laws and regulations under Turkish law.
Pursuant to Art. 130/2 of Code of Criminal Procedure No. 5271, "If the attorney, whose office is searched, or the president of the Bar, or the attorney representing him, objects to the search in respect to the items to be seized, at the end of the search, by alleging that those items are related to the professional relationship between the attorney and his client, then those items shall be placed in a separate envelope or a package and be sealed by the present individuals and, in the investigation phase, the judge of peace in criminal matters, or the judge or the Court in the prosecution phase, will render the necessary decision on this matter."
Art. 36 of Attorneyship Law No. 1136 reads that: "Attorneys are prohibited from disclosing information that has been entrusted to them, or that come to light in the course of performing their duties, both as attorneys, and as members of the Union of Bar Associations of Turkey and various bodies of bar associations."
In accordance with the above-stated legal provisions, there is no clear view as to whether or not ultimate protection is granted in the attorney-client relationship.
Competition Law Practice Including Request for Information and On-Site Inspection
Legal professional privilege has significance in relation to the practice of the Board under Turkish law. As per Art. 14 of the Act on the Protection of Competition No. 4054 ("Act No. 4054"), the Board may request any information it deems necessary from all public institutions and organizations, undertakings, and associations of undertakings, to fulfill its duties. Officials of these authorities, undertakings, and associations of undertakings, are obliged to provide the requested information within the period to be determined by the Board.
Art. 15 of Act No. 4054 stipulates that in the exercise of the duties assigned to the Board by this Act, the Board may perform examinations of undertakings, and associations of undertakings, in cases where it is deemed necessary. To this end, the Board is entitled to: (i) examine the books, any paperwork and documents of undertakings, and associations of undertakings, and make copies of the same, if needed, (ii) request written or oral statements on particular issues, and (iii) perform on-the-spot examinations with regard to any assets of undertakings. Those concerned are obliged to provide copies of information, documents, books and other instruments, as requested.
Having looked at the duties and practice of the Board, we will now explain the view of the Board in light of its two recent decisions.
Dow Decision and Enerjisa Decision
The Board's decision dated 02.12.2015 and numbered 15-42/690-259 ("Dow Decision")1 underlined that some of the documents taken during on-the-spot inspections are considered within the scope of the confidentiality of written communications between attorney and client. The Dow Decision shed light on the legal professional privilege and confidentiality for approximately one year. However, recently, within the framework of another inspection, this issue has been brought up again with a different perspective.
As stated in the Board's Dow Decision, "The principle of confidentiality (principle of legal professional privilege) prohibits the forced disclosure of information provided by the enterprises or persons to their lawyers and written communications made between them when receiving legal consultancy services and protect this communication. This protection aims to release the persons' concerns -who have received consultancy- about the forced disclosure of the information and written communications that are obtained, and direct them to provide all the information that they have in their possession to their lawyers, and to exercise their rights of defence in a real sense."
In its Dow Decision, the Board set forth the following conditions to be fulfilled: (i) the written communications must be made between client and independent attorney (who is not bound to the client by a relationship of employment) and, (ii) written communications must be made for the purposes, and in the interests, of the client's rights of defence. However, until the next decision, explained below, was published, the burden of proof was deemed to be on the Board to prove that these conditions were not fulfilled, and that certain documents were not afforded the protection of legal professional privilege.
As per the pre-inspection dated 16.11.2016 and the Memorandum dated 30.11.2016 regarding the claim that some of the documents obtained during the on-site inspection on 22.11.2016 are within the scope of attorney-client correspondence confidentiality has been discussed and decided upon, again on 06.12.2016 with the decision numbered 16-42/686-314 ("Enerjisa Decision")2.
It was reinstated by the Board that in accordance with the aforementioned principle of legal professional privilege, any correspondence regarding the exercise of the defense right of the client, and which takes place between attorney and client, between which there is no employment relationship, was deemed to be within the scope of the professional relationship, and benefits from such protection. The Board explained that this protection covers the correspondence with the independent attorney for the exercise of the right of defense and the documents prepared to obtain legal consultancy from the independent attorney.
It is underlined with the Enerjisa Decision that unlike the conclusion of the Dow Decision, any correspondence that aided in any violation, or concealing any continuing or future violation, and which was not related to the exercise of the defense right, cannot benefit from the legal professional privilege even if related to the pre-inspection, investigation or examination. With that regard, it has been determined that any legal opinion of an attorney provided to an enterprise as to whether a certain agreement is in breach of Act No. 4054, benefits from legal professional privilege. On the other hand, the Board expressed that any legal opinion provided by an attorney to an enterprise as to how Act No. 4054 could be breached, will not be within the scope, and under the protection, of legal professional privilege. Therefore, pursuant to the Enerjisa decision, the abovementioned legal burden of proof stated under the Dow Decision was reversed with respect to any correspondence regarding the methods of violating Act No. 4054. The Board has unanimously concluded in the Enerjisa decision that the relevant correspondence will not be within the scope of legal professional privilege, since such correspondence was not directly related to the right of defense.
The Dow Decision was regarded as one of the most important decisions rendered by the Board on confidentiality of written communications between attorney and client. Upon review of this decision, the Board's perspective in terms of legal protection that is granted to written communications between attorney and client appear to be clear. However, the recent Enerjisa Decision elaborated on the Board's approach toward legal professional privilege by highlighting that any legal opinion provided by an attorney to an enterprise as to how Act No. 4054 could be breached, will not be awarded any legal protection. According to the recent Enerjisa Decision, any such attorney and client attempting to evade the law will not benefit from the legal burden of proof on the Board. In that scenario, the legal burden of proof will fall upon the attorney and client engaged in the correspondence, if they claim that their correspondence should be deemed as privileged and confidential.
1 Please see.2 http://www.rekabet.gov.tr/File/?path=ROOT/1/Do... (Access date: 21.08.2016)