Absent an express provision or court decision regulating privilege and its boundaries, the position in respect of documents held by the client is unclear. Consequently, in the event of a request for disclosure by a judicial or an administrative body, a client is at risk of not being able to prevent the disclosure.

Any person who qualifies under the Law on Attorneys (Law No. 1136) ("Law") as an "attorney" is entitled to invoke the duty of confidentiality and thereby refrain from disclosure. The Law does not distinguish between in-house and external lawyers. The duty of confidentiality appears to apply to the legal profession as a whole. In the absence of a court decision stipulating otherwise, it may be said that the rights annexed to the duty of confidentiality are also at the disposal of in-house lawyers.

We would also like to note that the Guide to Examination of Digital Data During On-Site Inspections published by the Turkish Competition Authority makes a distinction between in-house lawyers and external lawyers. According to article 12 of the guide, during on-site inspections, only external lawyers may benefit from attorney-client privilege. However, it should be noted that this is not a law/regulation but a guide which relates only to competition law related inspections.

Given that Turkish law does not distinguish between external lawyers and in-house lawyers, and that the duty of confidentiality applies and covers tasks performed by trainees and assistants, internal communications between in-house lawyers are also likely to fall within the scope of the duty of confidentiality. In circumstances where both in-house lawyers have the authority to represent the company and are acting as its legal representatives, the provision of confidential information by one of the lawyers to another would be treated in the same way as a communication from a representative of the company to an external lawyer, and should therefore fall within the scope of the protection provided by the Law.

Only Turkish citizens are entitled to practice as an attorney in Turkey, within the meaning of the Law on Attorneys (Law No. 1136) ("Law"). Foreign lawyers are only permitted to provide legal advice on matters relating to foreign and international laws through attorney partnerships. As the Regulation on Attorney Partnerships provides that foreign attorney partnerships and their partners are under an obligation to adhere to the Law, the regulations and professional rules, the duty and right of confidentiality contained in the Law also applies to foreign attorney partnerships and their foreign partners/lawyers.

The duty of confidentiality and, by indirect reasoning, legal privilege, is exclusive to attorneys, as defined in the Law on Attorneys (Law No. 1136). Consequently, the provision of legal advice does not, on its own, activate legal privilege. The said legal advice must be provided by an "attorney" (avukat).