Working with foreign clients, Turkish lawyers sometimes face the challenging question of whether attorney-client privilege exists in Turkish law. 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. However, rather than a Common Law sense of privilege, what really exists in Turkish law is a duty of confidentiality, covering only attorney’s disclosure.
There is only one category of lawyer (Avukat). An Avukat is a private practice lawyer, advising clients on all legal matters and representing them before authorities and courts or other dispute resolution bodies. The Avukat takes part in the administration of justice with the duty to abide by professional ethics principles, especially the principle of independence. Lawyers are not limited in their capacity to advise or represent their clients, either geographically or regarding the area of practice.
Registration with the bar association is mandatory in Turkey. A lawyer must be a member of the city bar association of their place of business. However, being registered with a city bar association does not impose any geographical restrictions on a lawyer’s work.
Under Turkish law, lawyers are bound by confidentiality. In fact, sharing client information with third parties can not only have professional, but also criminal consequences for a lawyer. The application of duty of confidentiality is intended to ensure that the client and lawyer can confidentially discuss the opportunities and risks of a legal dispute without having to disclose.
Protection over attorney-client communications
Article 154 of the Criminal Procedure Code warrants unrestricted communication between defence counsels and their clients. It provides that “any suspect or accused at any time shall have the right to an interview with a defense counsel in an environment where other individuals are unable to hear their conversation; a power of attorney is not required. Written correspondence by these individuals to their defense counsel are not subject to control.” This warranty requires a civil agreement between a suspected person and a defence counsel who provides defence litigation advice. Unrestricted communication between defence counsels and clients is warranted just for the client’s defence. All information concerning the purpose of a defence strategy is protected. Defence counsels who contravene this purpose may be punished according to the article 258 of the Turkish Penal Code.
The attorney’s right to refuse testimony
Attorney–client communication is further protected by the attorney’s right to refuse testimony. Following article 46/1 of the Criminal Procedure Code, the defence counsel of the accused may refuse testimony concerning the information that was entrusted to them or became known to them in this capacity. Additionally, article 36/2 of the Attorneyship Act numbered 1136 states that “attorneys are prohibited from disclosing information that has been entrusted to them or that they come upon in the course of performing their duties”.
Generally, these regulations differentiate between defence counsels and attorneys. Attorneys become defence counsels when they enter into a civil agreement with a suspected person to provide defence litigation advice. The status of being suspect depends on sufficient grounds for being suspected of committing a criminal offence and the authorities’ intention to initiate a criminal investigation for any offence.
Due to the lack of corporate criminal law, a corporation cannot be deemed to be a suspect under the Criminal Procedure Code. Notwithstanding, corporations may be fined according to article 60 of the Criminal Procedure Code without the corporation avail itself of a defence counsel.
In connection with interception of correspondence, telecommunication devices in the office, dwelling and domicile of a defense counsel may not be monitored. If it becomes apparent during such a measure that direct attorney–client communications are involved, utilisation of these findings is inadmissible.
Search and seizure in attorneys’ offices, and seizure of mail
Unrestricted written communication related to the search and seizure in attorneys’ offices, and seizure of mail is also guaranteed by article 130 of the Criminal Procedure Code. The attorneys’ offices shall only be searched with a court decision and in connection with the conduct that is indicated in the decision and under the supervision of the public prosecutor. The President of the Bar or an attorney representing him should be present at the time of search. If the attorney whose office is searched or the president of Bar or the attorney representing him objects to the search in respect to the items to be seized, at the end of the search, by alleging that those items are related to the professional relationship between the attorney and his client, then those items should be put in a separate envelope or a package and be sealed by the present individuals and, in the investigation phase, the judge of peace in criminal matters, or the judge or the Court in the prosecution phase, to give the necessary decision on this matter. If the judge with venue establishes that the seized items are under the privilege of attorney client relationship, the seized object should be promptly returned to the attorney and the transcripts of the interactions should be destroyed. The decisions mentioned in this paragraph should be issued within 24 hours.
In cases of seizure in the mail office, the procedure stated in the above paragraph is applied.
Exceptions to attorney-client communications
The guarantee of unrestricted communication under article 154 of the Criminal Procedure Code does not apply unrestrictedly itself. For example, if the defendant talks to their defence counsel in a manner in which the investigation officers present can easily notice what is being said, the warranty of unrestricted communication ends.
This exception should prevent the strongly suspected person from continuing to interact with the terrorist organisation and support its existence.
Further, immediate attorney–client communication is not protected if the attorney is suspected of participating in criminal behaviour.
Refraining from testimony because of professional privilege
The protection of attorney–client communication by the attorney’s right to refuse testimony due to section 46 of the Criminal Procedure Code remains in effect unless the attorney waives their right to refuse to testify or the client has released the attorney from their duty to confidentiality. The lawyers or their apprentices or assistants have the right of refraining from taking the witness-stand about the information they have learned in their professional capacity or during their judicial duty.
The warranty of unrestricted oral and written communication provided by section 154 of the Criminal Procedure Code is an objective principle that is binding to the prosecution authorities. Therefore, protection in this regard may not be waived.
Under the professional rule applicable to every attorney irrespective of civil or criminal proceedings, article 36/2 of the Attorneyship Act numbered 1136 states that an attorney must observe professional secrecy. An attorney who acts in breach of this duty may be sanctioned under the article 258 of the Turkish Penal Code.
For communications to be privileged, they must be made for the purposes and in the interests of the client’s rights of defence, and with an independent lawyer who is not an employee of the company.