Attorney-Client Privilege in Competition Law Proceedings: Primed for Convergence? An Example from Mexico

By Russell Damtoft & Paul O’Brien (United States Federal Trade Commission)1

Attorney-client, or legal professional privilege, is a critical aspect of due process in competition proceedings. It is recognized by the legal systems of the United States and most common law countries. However, many other jurisdictions either do not recognize the privilege or do so only partially. The United States Federal Trade Commission (FTC) is a strong advocate for the adoption of a robust privilege, both bilaterally with countries and agencies that consider reforming their rules, and in multilateral bodies that promote best practice standards for competition investigations. We were pleased to see the recent reforms that Mexico has adopted to introduce the privilege specifically into its competition law, even though the privilege is severely constrained within its broader legal system. In this article, we discuss the privilege as it applies in most countries and how it applies in Mexico; The FTC’s work that helped lead to recognition of a robust privilege in multilateral competition institutions, including the ICN and OECD; the incorporation of the privilege in the US-Mexico-Canada Agreement (USMCA); and the successful Mexican initiative to strengthen this privilege.

I. The Attorney Client Privilege

The purpose of the attorney-client privilege is to encourage open communication between lawyers and clients in order to promote broader public interests, especially compliance with the l

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