Working with foreign clients, Turkish lawyers sometimes face the challenging question of whether attorney-client privilege exists in Turkish law. Most, if not all, would answer the question from a different angle, explaining that there is a duty of confidentiality and all communications between clients and their lawyers, as well as legal advice and attorney work products are shielded from disclosure. But rather than a Common Law sense of privilege, what really exists in Turkish law is a duty of confidentiality, covering only attorney's disclosure.
Legal framework governing lawyers' confidentiality
Turkish law provides a blanket confidentiality obligation for attorneys to the extent they become privy to client information in civil, administrative or criminal matters or proceedings. The Attorneys Act (Art. 36) is the main piece of legislation providing for a duty of professional secrecy and confidentiality. The relevant part of the provision is as follows:
- it is prohibited for attorney to disclose information communicated to them in the course of their representation of the client;
- an attorney cannot be compelled to be a witness involving his or her client's confidences; and
- an attorney cannot be subjected to any legal or criminal liability for refusing to be a witness.
Yet, Article 36 does not grant the client with any specific right to privilege. Moreover, the attorney has no right to object to the client's own disclosure.
Outside the civil litigation domain, a similar attorney-client privilege exists in the criminal field. Article 154 of the Turkish Criminal Procedure Law provides that attorneys' conversations with their criminally accused clients cannot be overheard or recorded by any public authorities. Correspondences between the criminal defendants and their attorneys are similarly shielded from monitoring or compelled disclosure.
While the Attorneys Act and the Criminal Procedure Law do not go so far as to stipulate a general attorney-client privilege, that did not stop the Turkish Competition Authority from embracing attorney-client privilege in its decisions.
Specifically, the Competition Authority granted a form of privilege to attorney correspondence and work product, subject to two conditions.1 First, the client's communication, written or oral, must be with external counsel. Correspondence with or advice from in-house counsel was not accorded the same protection. Secondly, the communication must be made for "legitimate" purposes in the interests of the client's right of defense. Legal advice on how to cover up antitrust violations, for instance, would not be shielded.
This perspective presupposes that the Authority will review the material in the first place, only to discard it if it passes the "legitimate advice" test. If asked, the investigated client is obliged to disclose the document no matter what, even if it may later be discarded as being legitimately privileged upon a content examination.2
To us, the Competition Authority's-without a legislative basis- introduction of a limited form of attorney-client privilege without a legislative basis, is to be considered with-without a legislative basis- only. Expanding it to civil litigation in general would be inappropriate.
Hence, while there are some provisions in Turkish law which broadly define related concepts on the protection of confidential information, there is no legal regulation that expressly grants a legal professional privilege to attorney-client relationships.
Why Turkish law does not have this concept?
Not that it makes a difference, but the reader may wonder if the lack of a general attorney-client privilege was a legislative oversight. In our view, it was not. We believe that the need was not felt because Turkish law does not have extensive document production or discovery in the first place. The basic principle of Turkish Civil Procedure is that each party will produce its own evidence and rely on facts and documents (a) in its possession, (b) in third parties' possession to the extent ordered by the judge or (c) in the public domain. If litigants wish to prove their position based on a document in the other party's possession, they must provide sufficient information about that document and concretize that evidence. It will be in the judge's discretion to rule on the request then.
 See for example, Dow Türkiye Kimya San. ve Tic. Ltd. Şti. Decision paras. 6 and 7 (File No. 2015-1-54, Decision No. 15-42/690-259, dated 2 December 2015); and EnerjiSA Enerji A.Ş. and Others Decision paras. 6 and 7 (File No. 2016-1-65 and Decision No. 16-42/686-3314 dated 6 December 2016).
 PINAR, Hamdi; The European Commission's Powers of Inspection in European Competition Law; Competition Journal, 12(4):127-154
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