Lex Mundi Global Attorney-Client Privilege Guide |
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Turkey |
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(Europe)
Firm
Pekin Attorney Partnership
Contributors Updated 18 May 2020 |
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| Is the ACP recognized in your jurisdiction? | Turkish Law does not explicitly recognize the concept of Attorney-Client privilege in the Common Law sense. However, the Attorney Law No. 1136 (“Attorney Law”) imposes a duty of confidentiality on attorneys in relation to the information they obtain by virtue of their professional activity (see below). |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Article 36 of the Attorney Law indicates that information an attorney obtains from a client is deemed confidential and enjoys a privilege of non-disclosure by the attorney. This principle of confidentiality is not only an attorney’s right but also a duty. As a result, it is prohibited for an attorney to disclose any information communicated to him in the course of his professional activities. In addition, attorneys cannot be compelled to be a witness involving such disclosure, nor be subjected to any legal or criminal liability for refusing to be a witness, and this, even if their client has revoked their confidentiality privilege. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | The Attorney Law, as the main piece legislation regulating the profession of attorney, does not differentiate between civil and criminal proceedings. The duty of confidentiality covers demands for disclosure by both judicial and administrative bodies. Therefore, government authorities are not entitled to require disclosure of any attorney-client communication and legal work product. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | U.S.: the Upjohn approach, control group test, etc.) Turkish Law’s approach to Attorney-Client privilege emphasizes the confidential nature of the information on the basis of profession, rather than identification of the client. In this regard, provisions of the Attorney Law clearly state that an attorney is required to keep confidential all information which has become known to him in the course of his professional activity. Therefore, under Turkish Law, there is no test (and need) for the identification of the client in the corporate context for the purpose of determining the scope of an attorney’s duty of confidentiality. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | The Attorney Law does not distinguish between in-house counsels and external attorneys. Therefore, communications between an in-house counsel and the officers, directors, or employees of the company they serve are not treated any differently than communications between an external attorney and his client. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes, please see our answer above. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | As mentioned above, Turkish Law does not distinguish between in-house counsel and external attorneys. There is no restrictive provision that deprives in-house counsels from being active members of Turkish Bar Associations. |
| Is the common interest doctrine recognized in your jurisdiction? | Common Interest Doctrine is not recognized under Turkish Law. In contrast to Common Law jurisdictions, presence of common legal interests with a third party will not ipso facto constitute a valid ground for disclosure. |
| How is the doctrine articulated in your jurisdiction? | N/A |
| Must a common interest agreement be in writing? | N/A |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Litigation funding is not statutorily regulated under Turkish Law. Considering the absence of any restrictive provision of law, a third party may in principle finance litigation costs. Such agreements shall be deemed to be valid in the application of the contractual freedom principle, as long as they comply with general provisions of the Turkish Code of Obligations. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | To our knowledge, there is no case law on this issue. |
| Is the crime-fraud exception recognized in your jurisdiction? | The crime-fraud exception is not recognized under Turkish Law. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | N/A |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | There is no specific provision. All materials prepared in anticipation of litigation or for the trial are protected under attorney’s duty of confidentiality. |
| What are the elements of the protection in your jurisdiction? | N/A |
| Does your jurisdiction recognize an accountant-client privilege? | Turkish Law imposes a general duty of confidentiality upon certified public accountants. In this regard, both the Turkish Code of Civil Procedure and the Turkish Code of Criminal Procedure recognize that certified accountants may refuse to testify as a witness if their testimony would disclose their client’s confidential information. However, they cannot refuse to testify if their client has revoked their confidentiality privilege. |
| Does your jurisdiction recognize a mediation privilege? | Article 4 of the Law on Mediation in Civil Disputes No.6325 states that unless agreed otherwise by the parties, the mediator shall be liable to keep confidential the information and documents which are submitted to him within the framework of the mediation activity or which he obtains otherwise, and other records. Moreover, unless agreed otherwise, any party involved in the mediation process shall also abide by this principle of confidentiality. |
| Does your jurisdiction recognize a settlement negotiation privilege? | A relatively recent Regulation (No. 30028, published in the Official Gazette dated April 14, 2017) has consecrated a settlement negotiation privilege under Turkish Law. According to this principle, parties and attorneys participating in a settlement negotiation shall keep confidential any information, document, or record they obtained in the course of negotiations. Furthermore, the Regulation states that in the event that parties are unable to settle, documents obtained during the negotiation process, or parties’ declarations cannot be used against them in a lawsuit. Attorneys may face disciplinary actions, in the event that they do not comply with the Regulation’s confidentiality provisions. |
Lex Mundi Global Attorney-Client Privilege Guide
Turkish Law does not explicitly recognize the concept of Attorney-Client privilege in the Common Law sense. However, the Attorney Law No. 1136 (“Attorney Law”) imposes a duty of confidentiality on attorneys in relation to the information they obtain by virtue of their professional activity (see below).
Article 36 of the Attorney Law indicates that information an attorney obtains from a client is deemed confidential and enjoys a privilege of non-disclosure by the attorney. This principle of confidentiality is not only an attorney’s right but also a duty. As a result, it is prohibited for an attorney to disclose any information communicated to him in the course of his professional activities. In addition, attorneys cannot be compelled to be a witness involving such disclosure, nor be subjected to any legal or criminal liability for refusing to be a witness, and this, even if their client has revoked their confidentiality privilege.
The Attorney Law, as the main piece legislation regulating the profession of attorney, does not differentiate between civil and criminal proceedings. The duty of confidentiality covers demands for disclosure by both judicial and administrative bodies. Therefore, government authorities are not entitled to require disclosure of any attorney-client communication and legal work product.
U.S.: the Upjohn approach, control group test, etc.) Turkish Law’s approach to Attorney-Client privilege emphasizes the confidential nature of the information on the basis of profession, rather than identification of the client. In this regard, provisions of the Attorney Law clearly state that an attorney is required to keep confidential all information which has become known to him in the course of his professional activity. Therefore, under Turkish Law, there is no test (and need) for the identification of the client in the corporate context for the purpose of determining the scope of an attorney’s duty of confidentiality.
The Attorney Law does not distinguish between in-house counsels and external attorneys. Therefore, communications between an in-house counsel and the officers, directors, or employees of the company they serve are not treated any differently than communications between an external attorney and his client.
Yes, please see our answer above.
As mentioned above, Turkish Law does not distinguish between in-house counsel and external attorneys. There is no restrictive provision that deprives in-house counsels from being active members of Turkish Bar Associations.
Common Interest Doctrine is not recognized under Turkish Law. In contrast to Common Law jurisdictions, presence of common legal interests with a third party will not ipso facto constitute a valid ground for disclosure.
N/A
N/A
Litigation funding is not statutorily regulated under Turkish Law. Considering the absence of any restrictive provision of law, a third party may in principle finance litigation costs. Such agreements shall be deemed to be valid in the application of the contractual freedom principle, as long as they comply with general provisions of the Turkish Code of Obligations.
To our knowledge, there is no case law on this issue.
The crime-fraud exception is not recognized under Turkish Law.
N/A
There is no specific provision. All materials prepared in anticipation of litigation or for the trial are protected under attorney’s duty of confidentiality.
N/A
Turkish Law imposes a general duty of confidentiality upon certified public accountants. In this regard, both the Turkish Code of Civil Procedure and the Turkish Code of Criminal Procedure recognize that certified accountants may refuse to testify as a witness if their testimony would disclose their client’s confidential information. However, they cannot refuse to testify if their client has revoked their confidentiality privilege.
Article 4 of the Law on Mediation in Civil Disputes No.6325 states that unless agreed otherwise by the parties, the mediator shall be liable to keep confidential the information and documents which are submitted to him within the framework of the mediation activity or which he obtains otherwise, and other records. Moreover, unless agreed otherwise, any party involved in the mediation process shall also abide by this principle of confidentiality.
A relatively recent Regulation (No. 30028, published in the Official Gazette dated April 14, 2017) has consecrated a settlement negotiation privilege under Turkish Law. According to this principle, parties and attorneys participating in a settlement negotiation shall keep confidential any information, document, or record they obtained in the course of negotiations. Furthermore, the Regulation states that in the event that parties are unable to settle, documents obtained during the negotiation process, or parties’ declarations cannot be used against them in a lawsuit. Attorneys may face disciplinary actions, in the event that they do not comply with the Regulation’s confidentiality provisions.