Global Investigations Review - The law and practice of international investigations

Privilege

Last verified on Monday 2nd October 2017

Turkey

Serdar Paksoy and Begüm Nişli
Paksoy

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. Yes. The rights and obligations of attorneys practising in Turkey are regulated under the Attorney Law No. 1136 (the Attorney Law), which imposes a secrecy obligation on the attorneys in relation to the information that they are entrusted with by the client, or that they obtain by virtue of their legal profession of attorney, or by virtue of their duties at the Union of Turkish Bar Associations and other bar association bodies. Therefore, the protection does cover communications between an attorney and client provided that the communication is due to the attorney’s legal profession and therefore there is a causal link between the communication made and the attorney’s legal profession. It is generally accepted that the privilege cannot be raised if the communication in question concerns public or constitutional order of the state.

    In addition, the Union of Turkish Bar Associations is a member of the CCBE European Bars with observer status and as a result Turkish lawyers are bound by the Code of Conduct of European Lawyers, which also regulates the secrecy obligation applicable to Turkish attorneys.

    Under Turkish Code of Civil Procedure No. 6100 (the CCP), offices of attorneys can only be searched if there is a court decision related to the same. The search must be limited to the subject matter of the said court decision, under the supervision of the Public Prosecutor. The president of the relevant bar association or an attorney representing him or her must be present. If the attorney in question or the president of the relevant bar association or his or her representative objects to the confiscation of certain documents on the grounds of attorney–client privilege, such documents must be put in a sealed envelope or package and it is at the authorised court’s discretion to decide on the privileged status of the documents within 24 hours following the search. If the court holds that the documents are related to attorney–client relationship, the documents in question must be returned to the attorney and the minutes documenting the operation must be destroyed. The foregoing is also applicable in relation to documents confiscated at the post office.

  3. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  4. The concept of “privilege” does not exist under Turkish law per se as it does under common law systems. Turkish law does on the other hand have similar concepts and terminology that aim at protecting the secrecy of the client as will be explained throughout this paper.

    No, the privilege does not only apply to legal advice. Any information that the disclosure may lead to monetary or non-monetary damages to the client, or may entail criminal consequences for the client or may simply cause negative reputation of the client among other people may be deemed as privileged information. Privilege may also include any information that the client confides in the attorney even if the disclosure does not entail any risk of monetary or non-monetary damages to the client. The protection covers all the information that the attorney acquaints with due to and within the course of his or her legal profession, irrespective of whether or not the disclosure may harm the client, thus any non-legal or business-related information of the client.

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. No, there is no distinction made between legal advice related to litigation and other legal advice.

  7. 4.

    What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication? Does it cover documents prepared during an attorney-led internal investigation?

  8. Any document provided by the client within the scope of the attorney’s legal profession, any documents created by the attorney within the scope and in course of his/her legal profession and other documents, if any, received from third parties in relation to the same activity would benefit from the privilege. The protection is applicable to the information obtained from the client, or documents submitted by the client and from any other sources such as verbal or written communications between attorney and client. Therefore, the main criterion that should be taken into account in order to determine the attorney–client relationship is whether the client disclosed any information or communication relying on the attorney’s confidentiality duty.

    The privilege would also cover any document that was prepared in anticipation of attorney-client relationship depending on its content. The document would be protected if it includes any privileged information of the client; however, if the document lacks any privileged information, the privilege would not extend to such document. Moreover, even if the anticipated attorney–client relationship is not established at the end, the attorney would still be under the obligation to keep that person’s information privileged as per the provisions of the Attorneys’ Code of Conduct issued by the Union of Turkish Bar Associations. Accordingly, the privilege would cover documents prepared during an attorney-led internal investigation provided that it includes privileged information of the client.

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. Under the Attorney Law, any attorney to whom the principal attorney delegates its duties to the extent permitted by the particular power of attorney is bound by the principal attorney’s obligation of confidentiality. Similarly, attorneys working under the roof of an attorney partnership may be disclosed clients’ privileged information and are under the obligation of confidentiality. In this case, the attorney partnership shall be jointly and severally liable in the event an attorney employed by that attorney partnership breaches the confidentiality obligation. This principle is also in line with an employee’s duty not to disclose confidential information that they obtain as part of their employment.

    Privileged information may be disclosed by the attorney standing as a witness in a lawsuit provided that the client gives his or her consent to the disclosure under the CCP and the Code of Penal Procedure No. 5271 (the CCP).

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. The information that can be obtained from publicly available sources cannot be deemed as privileged information. However, a piece of information being known by a third party would not automatically mean that the information is out of the scope of the privilege. The circumstances should be considered on a case-by-case basis.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. There are certain exceptions under which disclosure of the privileged information is permitted under Turkish law. First, the disclosure of the privileged information is possible if the client waives the privilege in whole or in part for a specific piece of information to be disclosed. Second, the attorney may also disclose the privileged information in case the disclosure is necessary for the protection of attorney’s rights in a lawsuit initiated against or by the attorney. The subject matter of the lawsuit may include but should not be limited to damage claims arising from private law relationship, disciplinary penalties by the relevant bar organisation, or criminal law sanctions. Also, it may be argued that the attorney may disclose privileged information in a lawsuit for the sake of the client’s legitimate interests, provided that the disclosure is proportionate to the purpose and limited to the persons who need to know. Lastly, in case the attorney becomes aware of a potential crime or an already committed crime, certain law scholars argue that only in case of organised crimes the attorney should alert the authorities and thus break the privilege for a greater interest. 

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. Yes. Under the Turkish Criminal Code No. 5237 (the TCC), violation of confidentiality of communication is punished by imprisonment from one to five years, depending on the type of violation. Again under the TCC, any person who discloses commercial secrets, banking secrets or client secrets obtained by virtue of his/her duty or profession to unauthorised persons is punished by imprisonment from one to three years and a judicial fine of up to 5,000 days. 

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. Turkish law does not establish a distinction between the confidentiality obligation of an external counsel and an in-house counsel per se. Considering that in-house counsels are employees of a company and based on general principles of the relationship of employment under Turkish law, in-house counsels have a duty not to disclose confidential information that they receive as part of their employment at the company beside their confidentiality obligation arising from the conduct of his or her legal profession. However, communications between the company and in-house counsel are not protected by the privilege under Turkish anti-trust law. For any communication between attorney and client to be considered privileged by the Turkish Competition Authority, the attorney must be an independent attorney and not an employee of the company.

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. Yes. The privilege does not only protect the information obtained from the client but also the information obtained from third parties such as the corporate client’s employees to the extent that it is obtained as part of attorney-client relationship between the corporate client and the attorney. However, the attorney is not under any liability towards the employees but only towards the client itself in case of breach of the privilege. 

  21. 11.

    Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?

  22. The privilege also protects communications between an attorney and non-lawyer employees of a corporate client in the same way as explained under question 10. Non-lawyers employed by the client with an employment agreement in the sense of the Labour Law are also under the duty not to disclose confidential information that they obtain as part of their employment.

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. The privilege regulated under the Attorney Law only applies to the attorneys registered in a local bar association in Turkey.

    While the concept of privilege is not addressed in detail under Turkish positive law, the matter is highly connected with the constitutional right of defence, which is a general principle of law. On the other hand, there are no explicit legal constraints regarding the invocation of privilege by a foreign attorney in a given case. Due to the globally accepted secrecy obligation of attorneys, being registered with a Turkish local bar is not a prerequisite to invoke privilege.

  25. 13.

    Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?

  26. The information obtained from third parties to the extent that it is obtained as part of attorney-client relationship benefits from the privilege. The attorney is under secrecy obligation for such information. However, the privilege for such information does not extend to non-lawyer third parties. The client may explicitly or implicitly, wholly or partially waive the privilege on any information to allow the attorney to communicate information to such third parties. The client, in order to protect such information, will have to enter into confidentiality agreements with third parties.

  27. 14.Does the privilege apply to communications with potential clients?
  28. The information obtained from any person as part of an actual or anticipated attorney–client relationship would be covered by the privilege. The communications with a potential client would fall in the scope of the privilege even if the attorney and the client fail to agree on the provision of legal services, or if the information was communicated prior to such agreement.

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. The privilege is held by the client as the attorney is under the duty to keep the communications and information obtained from the client privileged. Therefore, the party benefiting from the privilege is the client. If any privileged information is disclosed, the client is entitled to rightfully terminate the client-attorney relationship or the proxy agreement between the client-attorney. The relationship between the client and attorney is based on trust and when the trust is damaged, the client cannot be expected to continue to the client-attorney relationship. However, the court will decide on a case-by-case basis if the termination upon the disclosure of the information can be deemed as rightful and grounded. 

  31. 16.Can the privilege be waived? Who may waive it?
  32. Yes. The client may explicitly or implicitly, wholly or partially waive the privilege at any time. The waiver may be withdrawn until the privileged information is actually disclosed. In addition, lawyers may refuse to disclose information that the privilege is waived by the client. Lawyers are allowed to abstain from testifying in a lawsuit even if the client waives the privilege.

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. The waiver may be partial. The waiver is only limited with the content that the client specifies. A client’s waiver in relation to a past court case cannot be deemed as the whole privilege arising from the attorney–client relationship has been lifted. Therefore, the privilege can be waived for certain communications and not others.

  35. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  36. There are no precedents under Turkish law regarding this type of disclosure without waiver. It may be argued that they may share such privilege information without waiver from each other for the sake of protecting their individual rights. 

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. Since the attorney’s confidentiality obligations arise from the law, confidentiality provisions or separate confidentiality agreements are not very common in attorney-client relationships. On the other hand, clients may require a separate confidentiality undertaking from their attorney in cases where the clients consider the information to be disclosed as extremely sensitive.

    Enforcement considerations

  39. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  40. The privilege is regulated under the Attorney Law, together with the CCP and CPP where the matter is addressed as the lawyer’s right to abstain from testifying in a lawsuit.

    However, the relevant provision under the Attorney Law does not detail the rules on privilege but only provides the general principle of privilege. Moreover, the Code of Conduct of the Union of Turkish Bar Associations and the Code of Conduct by European Lawyers applicable to lawyers qualified in Turkey due to the Union of Turkish Bar Associations’ membership with observer status to the CCBE European also govern the secrecy obligation.

    Although the abrogated Turkish Criminal Code No. 765 included a provision sanctioning the violation of the privilege, the TCC currently in force does not provide any sanction on the violation of the privilege.

    There are no case law examples found in publicly available sources regarding the privilege. Privilege is an issue that is very rarely raised before the courts in Turkey.

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. Turkish law does not specify whether the privilege is characterised as a procedural or evidentiary rule. On the other hand, it is characterised as a substantive right. Although the rules related to privilege are not found in the Constitution per se, it is a reflection of the constitutional right of defence and privacy. 

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. Under both the CCP and CPP, attorneys are allowed to refuse to testify as a witness. Under the Attorney Law, attorneys may only testify as a witness in matters that are entrusted with or that they know due to their legal profession upon the client’s consent. On the other hand, attorneys may still abstain from testifying as a witness despite the client’s consent pursuant to the relevant provisions of the CCP and CPP and shall not be legally or criminally liable for abstaining. An example of the difference in the regulatory context may be the Turkish Competition Authority’s approach where communications with the in-house counsel are not considered to be privileged.   

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. There are no regional variations in Turkey as for the privilege. The rules regarding the privilege apply uniformly for the attorneys nationwide irrespective of which bar association they are registered to.

  47. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  48. Each local bar association in Turkey is responsible and authorised to conduct disciplinary investigations ex officio or upon complaint of the relevant person or upon the Public Prosecutor’s request. A complaint for violation of privilege can be submitted by any party to the bar association.

    Attorneys would face an official warning as a kind of disciplinary fine for the first occurrence of the violation. If the violation is repeated, the attorney will be imposed a fine or face suspension to perform the legal profession depending on the significance of the violation. If the attorney violates the privilege rules once again within a five-year term, the attorney will be dismissed from the profession.

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. The TCC does not provide any criminal sanction for the violation of the attorney–client privilege. However, the client may claim pecuniary and non-pecuniary damages for the violation of the privilege before civil courts. In that case, the client must be able to prove both the violation of the privilege and the damage resulting from the violation. The damage incurred by the client may be monetary or non-monetary. The court will determine the amount of indemnification based on the specifics of the case.

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. The attorney may disclose privileged information on the witness stand provided that the attorney receives client’s prior consent on the disclosure of the privileged information. However, even though the client has waived the privilege, the attorney is not under any obligation to give a witness statement; he may use his right to decline and is not subject to any civil or penal liability. However, privilege is very rarely invoked in Turkish practice.

    Please refer to our answer under question 1 regarding the invocation of privilege in case of a search conducted during the investigation process.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. The client bears the burden of proof in case of proceedings on damage claims arising from the violation of the privilege. The client is expected to prove that the privilege is violated through the disclosure of privileged information or communication without his/her consent and that the violation resulted into damage for the client. 

  55. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  56. Under Turkish law, it is forbidden to search attorneys unless he or she is caught red-handed to protect the privilege. Attorneys may claim that they are in possession of privileged documents of their clients. In cases related to national security or organised crimes, compulsory disclosure may prevail over the privilege.

    Please refer to our answer under question 1 regarding search warrants related to an attorney’s office.

  57. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  58. Privilege laws are not of essence in courts unless explicitly raised by either party in a particular case. There are no publicly available precedents or an established case law regarding the privilege.

    Turkish law allows parties of a contract to choose the law applicable to their contractual relationship provided that the contract contains elements of foreignness and the provision of the law of choice to be applied to a specific circumstance is not against the Turkish public order. There are no specific provisions as to the choice of law applicable to the privilege under Turkish law.

    On the other hand, as the Attorney Law applies to the attorney agreement, the attorney will always be under the secrecy obligation.

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. The privilege does not terminate on the death of the client. Unless waived by the client prior to the client’s death, legal heirs of the client are deemed to hold the privilege after his or her death since the privileged information may be related to the deceased client’s privacy, reputation and personal life.

    Since the duty to keep the communications confidential is imposed on the attorney, the privilege no longer exists on the death of the attorney. The privilege cannot pose an obligation on the legal heirs of the attorney since the communications are not and should not be transmitted to the legal heirs in the first place. However, if the deceased attorney had disclosed the client’s privileged information to other attorneys or non-lawyers working for the deceased attorney who are also under the obligation of confidentiality, the privilege regarding such particular information should not be terminated.

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. No, the privilege does not terminate upon the conclusion of the attorney-client relationship. An attorney’s obligation of confidentiality is indefinite and survives the termination of the attorney–client relationship. The privilege is even present in cases where no actual attorney–client relationship is established between an attorney and a person who disclosed hisor her information to the attorney in question.

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. Among scholars, the case in which the attorney becomes aware of client’s intention to further a crime or perpetuate fraud raises a conflict of interest issue. If such information is acquired, some of the scholars suggest that the attorney must inform the authorities about the crime instead of avoiding the disclosure of the information on the grounds of privilege. However, certain scholars argue that only in case of organised crimes including multiple suspects the attorney should alert the authorities and the disclosure of the privileged information should not be permitted for other types of crimes. The case law, however, is not clear on the subject.

  65. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  66. This situation is not addressed in Turkish law and there are no publicly available precedents that tackle this possibility. On the other hand, such inadvertent disclosure is likely to cause the indemnification of the client by the attorney. 

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. The privilege is not terminated if a third party is included in the communication by the client himself since the information can fall outside of the scope of privilege if it is publicly known. Therefore, communicating the information to a third party would not mean that the privilege is lifted for the attorney.

    However, if the attorney himself include a third party in a communication or forward the communication, then the violation of the privilege could come into question depending on the circumstances as discussed above as to the exceptions or caveats of the privilege. 

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Questions

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  3. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  4. 4.

    What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication? Does it cover documents prepared during an attorney-led internal investigation?


  5. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  6. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  7. 7.Are there any notable exceptions or caveats to the privilege?
  8. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  9. Protected parties

  10. 9.To what extent does the privilege extend to in-house counsel? 
  11. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  12. 11.

    Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?


  13. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  14. 13.

    Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?


  15. 14.Does the privilege apply to communications with potential clients?
  16. Ownership of the privilege

  17. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  18. 16.Can the privilege be waived? Who may waive it?
  19. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  20. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  21. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  22. Enforcement considerations

  23. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  24. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  25. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  26. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  27. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  28. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  29. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  30. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  31. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  32. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  33. Termination of the privilege

  34. 30.Does the privilege terminate on the death of either the attorney or the client?
  35. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  36. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  37. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  38. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?