The Development: Mexico's antitrust authority, the Comisión Federal de Competencia Económica ("COFECE"), released guidelines that recognize the attorney-client privilege in antitrust investigations.
Background: Mexican law requires that lawyers maintain professional secrecy, which includes both a right and duty not to disclose client confidences. However, these confidentiality protections apply only to lawyers and not to business personnel who also may participate in attorney-client communications.
Looking Ahead: Recognition of the attorney-client privilege in antitrust investigations is a welcome development. These new protections should encourage companies with Mexican operations to seek legal advice for antitrust issues before problems arise.
Attorney-Client Privilege in Mexico
Mexican law features due process rights, a right to legal counsel, and a right not to incriminate oneself in criminal proceedings. The protection of attorney-client communications is essential to ensuring that these rights are effective. However, like many jurisdictions with a civil law tradition, Mexican law does not have a specific regulation that protects communications between an attorney and a client. Instead, Mexican law requires that legal professionals maintain the confidences of their clients. Legal professionals who inappropriately disclose client information face fines for any damages caused by a disclosure.
Although legal professionals cannot be required to reveal client confidences, a government subpoena or litigation request targeted at a business may compel testimony or production of documents that includes attorney-client communications. This distinguishes confidentiality rules in Mexico from the attorney-client privilege recognized in the United States and other jurisdictions, and which protects confidential communications between an attorney and a client from disclosure, regardless of who possesses those communications.
COFECE's Privilege Guidelines
Like other competition agencies, COFECE has broad authority to investigate violations of Mexican competition law, including through dawn raids, information requests, and requests for live testimony from officers, directors, or shareholders. These investigative tools commonly result in COFECE collecting some privileged information.
The lack of certainty regarding the protection afforded to attorney-client communications made it risky for companies in Mexico to obtain legal advice about...