On February 25, 2026, the Second Circuit Court on Administrative Matters Specialized in Economic Competition, Broadcasting and Telecommunications (the “Court”) issued its ruling in case R.A. 281/2024. In this decision, the Court held that attorney-client privilege only applies to communications effectively containing legal advice, provided by an independent, certified legal professional.
This Client Alert addresses exclusively the scope of attorney-client privilege in proceedings under the Federal Economic Competition Law (LFCE). The rules governing privilege in other areas of law are distinct and regulated at the federal or state level, depending on the nature of the case.
Although the decision is not binding for other courts, depending on their interpretation, the requirements set out by the Court could significantly curtail the scope of attorney-client privilege in antitrust proceedings.
I. Background
- On June, 2023, COFECE’s Investigative Authority conducted a dawn raid and obtained electronic communications via forensic copies of the computers of an investigated company’s key personnel in the context of a potential bid-rigging infraction related to public IT procurement contracts.
- The company requested that certain documents and correspondence be excluded from the investigation file under the applicable Regulatory Provisions, arguing that they were covered by attorney-client privilege. The relevant correspondence included communications between the in-house legal department and commercial divisions of the company.
- COFECE’s Qualification Committee denied the requested protection for some documents, arguing that they did not include independent legal advice.
- The agent filed an amparo lawsuit and won at first instance, since the district judge held that the Committee violated the right to privacy of communications. COFECE appealed this decision.
- On appeal, the Court revoked the decision and denied amparo protection. In doing so, the Court also set out the requirements for a communication to be deemed protected by attorney-client privilege.
I. Court's Ruling
The Court identified three essential requirements for attorney-client privilege to apply:
- Objective requirement: The material goal of the communication must be the obtention or provision of legal advice aimed at protecting the right of defense, with an expectation of confidentiality. Merely labeling documents with legends such as “legal privilege” or having an attorney copied in the communications is not sufficient.
- Subjective requirement: The parties involved in the communication must be (a) an independent, certified lawyer acting in such capacity to provide legal advice and (b) its client. The Court specifies that the existence of a labor relationship of subordination disqualifies an attorney to be considered “independent”.
II. Practical relevance for companies and clients
Although this criterion is not binding precedent, it could be highly persuasive for the National Antitrust Commission, and it therefore carries significant practical weight for any company that is or may be subject to antitrust investigations:
- Communications with in-house counsel are excluded from attorney-client privilege. Companies will not be able to invoke protection over emails, opinions, or memoranda generated by attorneys who are part of their organizational structure under an employment relationship.
- Not all communications with independent external counsel are privileged. For a communication with outside counsel to be considered privileged, its material purpose must be the reception or provision of legal advise, and must be made with an attorney who is duly licensed to practice law.
- Internal company communications related to legal advice may not be protected. The internal company communications leading to, or resulting from, legal advice provided from independent outside counsel (including communications in which such advice is discussed or explained) may be excluded from privilege.
For further information regarding this Client Alert, please contact one of our members of the Competition practice group.
Legal Notice: This Client Alert is for informational purposes only and does not constitute legal advice or a formal opinion on any specific matter. The information contained herein reflects a general analysis prepared by our attorneys based on information available at the time of publication. Any reproduction, citation, or reference to this content must be expressly attributed to Mijares and should not be construed as a public statement or comment made by the firm to the media.
