Attorney–Client Privilege in Türkiye and Recent Legal Developments

Attorney–client privilege is one of the most fundamental pillars of the legal profession, ensuring trust, transparency, and fairness in the administration of justice. In Türkiye, this principle is safeguarded both by the Attorneyship Law (Avukatlık Kanunu) and the Code of Conduct for European Lawyers, as well as international human rights instruments interpreted by the European Court of Human Rights (ECHR). This blog explains the scope of attorney–client confidentiality in Türkiye, reviews key ECHR cases, and examines how Turkish competition law has recently addressed the principle.

Legal Framework in Türkiye

Article 36 of the Attorneyship Law

Under Article 36 of the Attorneyship Law No. 1136, attorneys are strictly prohibited from disclosing any information entrusted to them in the course of their professional duties or bar association activities. Even with the explicit consent of their client, attorneys may lawfully decline to testify, and exercising this right does not give rise to civil or criminal liability.

Criminal Procedure Safeguards

The Criminal Procedure Code (CMK) Article 130(2) provides an additional layer of protection:

• If documents seized during a search of a lawyer’s office are claimed to relate to attorney–client privilege, they must be sealed and referred to a judge within 24 hours for review.

• If confirmed, the documents must be immediately returned to the lawyer and all records of the seizure destroyed.

Together, these provisions establish a high threshold for interfering with attorney–client confidentiality in Türkiye.

European Court of Human Rights Perspective

The ECHR has consistently ruled that attorney–client confidentiality falls within the scope of Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private and family life, home, and correspondence.

Key Judgments

• Brito Ferrinho Bexiga Villa-Nova v. Portugal (2015)
  The Court found a violation of Article 8 when authorities accessed an attorney’s bank records without adequate judicial safeguards, emphasizing that professional secrecy is essential to justice.

• Laurent v. France (2018)
  The Court ruled that the interception of written communications between a lawyer and client by police at a courthouse was unlawful, highlighting that any interference must meet a test of urgent necessity.

• Pruteanu v. Romania (2015)
  The Court condemned the surveillance of a lawyer’s telephone conversations, stressing that monitoring without effective legal remedies undermines the rule of law and violates professional secrecy.

• Klass and Others v. Germany (1978)
  While upholding certain national security measures, the Court warned that secret surveillance powers must be strictly necessary in a democratic society and cannot be applied broadly.

Attorney–Client Privilege in Competition Law

The Turkish Competition Authority (Rekabet Kurumu) has also developed case law concerning the scope of attorney–client privilege during inspections and investigations.

The Dow Decision (2015)

The Authority acknowledged that documents exchanged between a company and its independent counsel for the purpose of legal defense fall under legal professional privilege. It further held that the burden of proof for excluding documents from privilege lies with the Authority.

The Enerjisa Decision (2016)

In contrast, the Authority narrowed the scope of privilege by ruling that communications intended to facilitate or conceal violations of Law No. 4054 on the Protection of Competition are not protected, even if conducted with an independent attorney. Here, the burden of proof shifted toward the attorney and client asserting the privilege.

Practical Implications for Clients in Türkiye

• Absolute Confidentiality: Information shared with your attorney for legal defense is protected under both national and international law.

• Limits of Protection: Communications aimed at breaching the law or hiding violations cannot benefit from privilege.

• Residence of Burden of Proof: Depending on the nature of the investigation, the burden of proving that communications are privileged may fall either on the Competition Authority or on the client and attorney.

• Searches of Law Offices: Any search of an attorney’s office must follow the strict procedure set out in CMK 130(2), with oversight by a judge.

Conclusion

Attorney–client confidentiality is indispensable for the protection of rights, the credibility of the legal profession, and the proper administration of justice in Türkiye. At Bayraktar Attorneys, we uphold this principle as a cornerstone of our practice, ensuring that every client can entrust us with their most sensitive information, confident that it will remain protected within the bounds of the law.