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Publication of the preliminary draft of the Technical Criteria of the Federal Commission of Economic Competition for the handling of information derived from legal advice provided to economic agents.

On December 11th, 2018, an extract of the preliminary draft of the Technical Criteria of the Federal Commission of Economic Competition for the handling of information derived from legal advice provided to economic agents (“Technical Criteria”) was published in the Official Gazette of the Federation.

The origin and motive of the aforementioned Technical Criteria arises from the importance of professional secrecy, which is a requirement that exists in certain professional activities, such as the legal profession, which demand total trust on the part of the individual with the service provider.

The Declaration of Perugia on deontological principles of the Advocacy of the European Community of the year 1977 emphasizes the importance of the respect and confidentiality that must maintain attorneys with their clients, likewise, it indicates that the professional secret is in such a way, a right and elemental duty of the profession, forming part of the pure essence of the profession of attorney, based on the unavoidable confidentiality between the client and this one . Although it is recommended that attorneys get into the habit of inserting a confidentiality clause in their communications, such clause is not necessary, the warning of “confidentiality” of the communication is understood per se.

In Mexico, the regulation of professional secrecy, as it is in the rest of the field concerning professional practice, is scarce and deficient. The most relevant regulations are scattered in civil and criminal legislation. It is an imperfect norm that lacks sanction.

The objective of these Technical Criteria is that the information obtained by the Federal Economic Competition Commission (“the Commission”) will not be considered nor will it obtain evidentiary value, when this information is contained in communications whose purpose is to obtain legal advice.

The foregoing, between any person and his attorney, in which, in a writ and in order with the Technical Criteria, it is stated that the information that has been provided or obtained by the Commission in a visit or investigation procedure is susceptible of being protected (the “Request for Qualification”). In the event that the attorney or the economic agent does not know these Technical Criteria, the public servant processing the investigation shall proceed ex officio in accordance with their application, informing its General Director so that he may conduct himself in accordance with the procedure for processing the Request for Qualification.

Once the Request for Qualification has been entered, the relevant safeguard and protection measures will be taken, until the nature of the protected information is resolved. The procedure for processing the Request for Qualification is as follows:

I. Five days after the Request for Qualification has been received, the General Director in charge of the procedure will send it to the Head of the Unit;

II. Subsequently, within the following five days, the Holder of the Investigating Authority will issue an agreement designating the members of the Qualifying Committee, said committee is the only one empowered to analyze the referred information.

In addition, the Request for Qualification will be ordered in turn and the applicant will be personally notified;

III. The instructor, member of the Qualifying Committee will analyze the Request for Qualification and within the following ten days will dictate an agreement in which: i) admits the Request for Qualification and convokes the Qualifying Committee so that, in agreed hour, the corresponding session is carried out, or ii) prevents by only occasion, when the writ omits some form requirement, a maximum term of five days will be granted to correct;

IV. Once the Request for Qualification has been analyzed, the Qualifying Committee, in a collegiate manner, will deliberate and decide whether the request is founded or unfounded.

In case it is declared founded, the necessary measures of safeguard will be ordered, if the information is physical, its return will be ordered, if it is an electronic file, the exclusion will be ordered, and it will be stated in a record. Otherwise, it will be ordered to be forwarded to the Directorate-General for information to be made available; and

V. Finally, the determination issued by the Qualifying Committee will be personally notified to the applicant.

It is important to mention that these Technical Criteria have the character of a preliminary draft, therefore, a period of public consultation is opened for thirty working days counted from the publication of the present, in order for any interested party to present opinions to the Commission. If approved, these Technical Criteria shall enter into force on the day of their publication in the Official Journal of the Federation.

Sources consulted:

● Official Journal of the Federation. (2018, December 11). EXTRACT of the preliminary draft of the Technical Criteria of the Federal Commission of Economic Competition for the management of information derived from legal advice provided to economic agents. From the website: http://www.dof.gob.mx/nota_detalle.php?codigo=5546197&date=11/12/2018

● Barney, O. C. (2018). El secreto profesional del abogado en México (1st ed.). México: Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurídicas, Ilustre y Nacional Colegio de Abogados de México.

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