The Turkish Competition Authority (TCA) recently published yet another decision regarding the narrow interpretation of attorney-client privilege in competition law. The TCA conducted an on the spot inspection at premises of Warner Bros within the scope of a preliminary examination initiated in December 2018. Case-handlers conducting the on the spot inspection seized, among others, a 16-page legal advice communicated to the general manager of the company by outside counsels. As the company invoked legal professional privilege, this document was placed in a sealed envelope in order to be reviewed by the TCA.
The two conditions of attorney-client privilege
In the Decision reviewing objections on privilege the TCA, reminds that legal professional privilege may be claimed in competition law proceedings under two conditions:
- the exchange between the attorney and the client shall be connected to the client's right to defense,
- the exchange shall emanate from an independent lawyer.
In other words, legal advice which is not directly connected to exercising clients' right to defense or which is circulated by an attorney bound to the client by an employment relationship(i.e. an in-house counsel) are not privileged. Similarly, legal advice outlining how to circumvent competition rules are not protected by the legal professional privilege. For instance, a legal opinion drafted in order to assess whether a behavior amounts to a competition law infringement may benefit from the attorney-client privilege; whereas an opinion explaining how a behavior may give rise to a competition law infringement will exceed the boundaries of such privilege.
How does the TCA determine the scope of the right to defense?
The TCA discusses whether a legal advice may be considered within the scope of the right to defense based on the actual timing of the legal advice sought/received. The TCA emphasizes that the exercise of the right to defense requires initiation of a procedure, which may give rise to adverse results for the concerned party. In other words, any legal document exchanged between the attorney and the client prior to the initiation of such procedure is not considered to benefit from legal professional privilege, as it is not in direct relation with the client's right to defense.
Similarly, correspondences seized during the inspection conducted at Warner Bros' premises are not evaluated within scope of legal professional privilege as they took place prior to the TCA's decision to launch a preliminary examination.
How to interpret legal professional privilege moving forward?
The latest decision of the TCA does not contain detailed information regarding the content of seized documents or how these documents advise on circumventing competition law rules. However, it is evident that the TCA adopts a narrow interpretation while determining the scope of the attorney-client privilege in competition law proceedings. Until the TCA adopts a different approach, undertakings scrutinized by the TCA will be able to successfully invoke legal professional privilege only regarding legal advice sought after the initiation of a procedure such as a preliminary examination or an investigation.
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