Professional secrecy and its exceptions apply to all lawyers, regardless of their area of practice. The Colombian Antitrust Authority -the Superintendence of Industry and Commerce (SIC) — has held, in a couple of cases, that communications and documents prepared by in-house counsel are not protected by attorney-client privilege.¹

The SIC is an administrative authority that has very broad investigative powers, including the possibility to conduct dawn raids without judicial warrant, request access to documents and information during the investigations, and impose fines for failure to cooperate.

In 2016, the SIC initiated an investigation against parties for alleged failure to cooperate during a dawn raid. The investigation targeted employees of the company under investigation, as well as three external lawyers who were present during the raid. Ultimately, the SIC closed the case without imposing any sanctions on the external counsel.

In a 2017 decision involving a dominance case in the telecommunications sector, the SIC admitted as evidence in the investigation a document prepared by the in-house legal team. The SIC reasoned that in-house counsel, being employees rather than independent legal advisors, do not benefit from the protections of legal professional privilege.

In a 2019 decision imposing a fine for failure to cooperate during a dawn raid, the SIC admitted as evidence WhatsApp messages exchanged between employees of the company, where they relayed information received from external counsel. The SIC decided that these exchanges between employees of the company, albeit including external counsel, were not covered by privilege.

The SIC has upheld that it has the powers to copy all information in corporate servers and devices (and even in personal devices used for commercial purposes). If, upon review, any information is deemed to be covered by privilege, the SIC would exclude it as evidence.

However, there is a debate on whether the SIC can access the information — and even copy it — as such access can be considered a breach of privilege and should not be within the SIC's powers.

[1] Superintendence of Industry and Commerce. Decision issued in the hearing dated 20 August 2019 in the proceeding with docket No. 17-407921. Also in: Superintendence of Industry and Commerce. Resolution 7675 of 27 February 2017; Superintendence of Industry and Commerce. Resolution 34255 of 14 June 2017; Superintendence of Industry and Commerce. Resolution 51905 of 3 October 2019.

To address this question, we assume the following:

1. The individual conducting the interviews or producing documents during the investigation is a lawyer.
2. The lawyer conducting the interviews or producing documents is acting in the capacity of a legal advisor and providing legal counsel.

Under these assumptions, the information would generally be protected by professional secrecy. However, this protection may not apply in the following circumstances: i) the lawyer becomes aware of information related to the commission of a crime;¹ ii) a judicial or administrative authority formally requests the information under an exception to the non-disclosure of reserved information –for example, information protected by professional secrecy²; and iii) the client has expressly authorized the disclosure of the information.³

[1] Lawyers Disciplinary Code, article 34(f).

[2] Law 1755 of 2015, Article 27. Superintendence of Industry and Commerce. Decision issued in the hearing dated 20 August 2019 in the proceeding with docket No. 17-407921. Also in: Superintendence of Industry and Commerce. Resolution 7675 of 27 February 2017; Superintendence of Industry and Commerce. Resolution 34255 of 14 June 2017; Superintendence of Industry and Commerce. Resolution 51905 of 3 October 2019.

[3] Lawyers Disciplinary Code, article 34(f).