Recent Changes on Turkish Attorneyship Law

The Draft bill governing the organisation of bar associations become law after being published in the Official Gazette on Wednesday, 15’th July 2020. Lawyers are allowed to form additional bar associations in provinces with more than 5,000 registered attorneys. New associations need a minimum of 2,000 members.

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Recent Changes on Turkish Attorneyship Law

The Draft bill governing the organisation of bar associations become law after being published in the Official Gazette on Wednesday, 15’th July 2020. Lawyers are allowed to form additional bar associations in provinces with more than 5,000 registered attorneys. New associations need a minimum of 2,000 members. Lawyers are free to register with the Bar of their choice, if there were several in the same city. The new system will be effective for the next election of Bar presidents in October 2020.

The Union

Provincial bar associations are affiliated to the Union of Turkish Bar Associations, an Ankara-based umbrella body representing the legal profession at the national level. Each bar association sends its representative delegates to the union where they have voting powers and serve on national commissions. Although all bar associations are recognized as public legal entities (kamu tüzel kişisi) separate from the Union of Turkish Bars, the union itself holds a key position because it controls and distributes significant financial sources to the provincial bars to cover legal aid services.

The new law would also alter the number of delegates provincial bar associations can send to the Union of Turkish Bars. Delegates at the union elect the president of the Union of Turkish Bars and participate in different commissions and functions of the union at the national and international levels. Under the new law, all bars will be allowed to send four delegates to the union, and then one delegate more for every 5000 members. 

Compulsory membership

Every lawyer in Turkey is currently obliged to register with a single bar association in the province in which they work and there are 80 bar associations in all. The bar associations are responsible for issuing licenses to lawyers to practice once they have completed their traineeships and for ensuring lawyers abide by the ethical standards of the profession. 

According to the figures from the Union of Turkish Bars (TBB), some 17 598 lawyers are registered with the Ankara Bar, 46 052 lawyers are registered with the Bar in Istanbul and 9 612 lawyers are registered with the Bar in Izmir. The country has a total of 127 691 registered lawyers. The bill ‘providing for the splitting of Bars” should affect those three Bars counting more than 5 000 lawyers.

Practicing Law in Turkey

In Turkey, lawyers are not required to specialize and are free to address “…the resolution of every sort of legal relationship, every legal matter and dispute according to principles of justice and equity,” and to use their knowledge and expertise in the service of justice and persons “… before all courts, judges, private and public persons, boards and organizations.”

In order to enter the profession, a candidate must:

  • Be a citizen of the Turkish Republic;
  • Be a graduate of a Faculty of Law in Turkey, or a graduate of a foreign law faculty who has successful passed exams in any missing subjects;
  • Hold a certificate confirming the completion of a year’s internship
  • Be resident in the region of the Bar Association he or she wishes to register with;
  • Have no criminal record which would disbar him or her.

An attorney who has entered the profession is empowered to promote or defend the rights of real and legal persons before all courts, arbitrators or other bodies that have judicial power. They may give advice on law and legal issues and negotiate a settlement.

Foreign Law Firms Operating in Turkey

In Turkey, the profession is reserved to Turkish nationals. The only exception to this rule are those foreign lawyers involved in partnerships that fall within the scope of the regulations governing the encouragement of foreign investment. Such partnerships may be established according to the Attorney’s Law and may only work within the areas of foreign and international law.

Foreign lawyers cannot represent clients before Turkish courts. Foreign attorney partnership can provide legal services in Turkey in relation to international law and foreign law related matters, but remains subject to the rules under the AA. This is applicable to lawyers working for foreign attorney partnerships regardless whether they are Turkish citizens. The partners of the foreign attorney partnerships do not need to enrol with a Turkish bar association. In provision of legal services in Turkey on matters other than related to Turkish law, foreign lawyers are also subject to the rules under the AA.

Compulsory membership to the Bar Associations

Individuals who are not registered with a Bar Association may not use the title “Attorney” or work in the profession except the lawyers who are employed by state/government. Registration with a bar association is mandatory to practise law in Turkey.

Attorneyship Law numbered 1136

The attorneyship law numbered 1136 has been published in the Official Gazette in Turkey on 7 April 1969.  The Attorneyship Act numbered 1136 is the main law setting out the rules and principles that lawyers must abide by. In addition, the communiqués (for example, the Communiqué on the Attorneyship Act, the Communiqué on the Advertisement Ban, and so on) and the Code of Conduct of the Union of the Turkish Bar Associations set out the framework for legal practice.

Only one category of lawyer (avukat)

There is only one category of lawyer (avukat) in Turkey. Under the Attorneyship Act No. 1136 (AA), lawyering is a public service and an independent profession. Lawyers can represent their clients before courts and provide legal services. Lawyers can provide legal opinion, litigate and defend the rights of parties before courts, arbitral tribunals, and other bodies with jurisdictional powers, and manage all documentation associated with it. Lawyers take part in the proceedings with the duty to abide by professional ethics principles and the principle of independence.

No limitation throughout  jurisdiction of Turkey

There are no limitations on lawyers advising throughout the jurisdiction in terms of state, territory, province or specialisation. On registration with a bar association in Turkey and obtaining a practicing licence as a lawyer, the profession can be performed anywhere in the country regardless of the geographical location or the area of practice, provided that the lawyer has only one office, which should be based in the province of the bar association where the lawyer is registered. However, the practice in a province other than the one the lawyer is registered in should not be permanent.

Having Attorney Optional

Under the Turkish Constitution every individual has the right to be heard and assert their claims and defend against claims made against them and provide evidence to support their case before courts.

In parallel with this, under the Civil Procedure Law, parties can conduct litigation before civil courts themselves. However, if they prefer to be represented, this must be done by a qualified lawyer. Moreover, if the judge concludes that a party is not capable or competent to litigate their case, such party will be granted extra time to retain a lawyer.

With respect to the criminal proceedings, representation by an attorney is not mandatory either, except for the cases where the accused is a minor or the alleged crime may be penalized by imprisonment for over five years under the Criminal Procedure Law.

Organisations of legal services 

Under the Attorneyship Act, law firms/offices can be established as a solo practitioner office, law office/firm or an attorney partnership.

A solo practitioner office is an office established by a sole practitioner lawyer, and does not have a legal personality.

A law office/firm is where multiple lawyers jointly practise law under the name of a law office/firm, which also does not have a legal personality. In this type of organisation, matters such as rights and obligations of the lawyers, distribution of incomes and expenses must be agreed on in writing and must be submitted to the relevant bar association.

An attorney partnership can be established by registration with a special registry (the Attorney Partnership Registry) maintained by the Union of the Turkish Bar Associations, and has a legal personality.

Multi-disciplinary practices (MDPs) are not allowed

Under the Attorneyship Act, lawyers cannot engage in commercial business or any other business that may be deemed as conflicting with legal practice.

Alternative legal service providers are not allowed

The provision of legal services is reserved for lawyers. Bar associations provide legal services to those that cannot afford legal and court fees through their legal aid centres. The services are provided by qualified lawyers registered with the respective bar association and appointed for the specific matter. The lawyer providing the service is bound by the principles under the Attorneyship Act (AA) as well as the communiques and the Code of Conduct of the Union.

Regulators of the legal profession

The regulators of the legal profession in Turkey are:

  • The bar associations.
  • The Union of the Turkish Bar Associations.

The Union consists of 80 bar associations established in Turkey. The Union and the bar associations are independent professional organisations that have legal personalities. The Union and the bar associations promote the maintenance of a fair and trustworthy relationship between lawyers, and aim to address the needs of lawyers and supervise their compliance with the rules and obligations of conducting legal practice.

Bar associations have disciplinary powers and exercise such powers through their boards of directors and disciplinary boards. Disciplinary boards can conduct investigations ex officio or following a compliant, by the approval of the board of directors. If the disciplinary board resolves that the investigated lawyer has violated the rules and/or obligations under the AA, it can impose sanctions. These include:

Warning and reprimand.

  • Fines (ranging between TRY10,000 and TRY150,000).
  • Temporary ban from practising law (from three months up to three years).
  • Disbarment.

The Union is the competent authority to examine and decide on the appeals made against the decisions of the disciplinary board.

Register of qualified lawyers

Each bar association has its own registry and the Union has a general registry composed of lawyers registered in all bar associations in the country. Both registries can be accessed online.

Indemnity insurance is not mandatory for practising lawyers

Professional indemnity insurance is not mandatory for practising lawyers under Turkish law. However, taking out such insurance is becoming more common in practice.

 Conflicts of interest

Under the Attorneyship Act and the Code of Conduct of the Union, lawyers cannot act for one party if they advise another party with a conflicting interest on the same matter. The restriction also applies to all lawyers working in the same attorney partnership or law office as the conflicted lawyer.

When a lawyer becomes aware of a conflict of interest, they must refuse to be mandated. If they have already accepted the mandate without being aware of the conflict, they must resign all mandates concerned.

There is no explicit restriction imposing an obligation on the lawyer to refuse to act for either of the clients in case of a conflict, therefore it can be interpreted that the lawyer can act for either of the clients if a conflict arises between them, as long as the lawyer is compliant with the general conflict of interest rule.

Holding clients files, money or properties

In the event of a dispute about their retainer or fees, lawyers can hold the clients’ money and any other property which were given by the clients or collected on behalf of the clients. Accordingly, lawyers can refuse to hand over the clients’ money or property until their legal fees are fully paid. Further, a lawyer has a preferential right on the property of the client, which is held by the client or receivables which are to be collected from the counterparty following a court verdict as a result of the lawyer’s efforts.

Client engagement communications 

The relationship between an attorney and their client is considered as an agency relationship under the Turkish Code of Obligations, and an agency (attorney) contract is deemed to have been established between the attorney and the client.

There are no specific requirements or a mandatory content in relation to the client engagement communications. Accordingly, the contract is subject to the freedom of contract and the parties can freely determine their rights and duties as well as the scope of the attorney’s mandate, fees and limitation of liability, and so on. Under the Attorneyship Act, an attorney retainer agreement must include a specific legal service and a fee in consideration of such service.

Obligations to clients

Under the Attorneyship Act, lawyers must exercise due care, honesty and diligence when practising law. Lawyers must comply with the instructions of the client. As a result of the trust aspect of the relationship established with the client, lawyers must advise their clients as comprehensively and exhaustively as possible, inform their clients about potential risks and burdens. Further, lawyers must observe the confidentiality with respect to the client’s information that they have obtained in the course of their legal service. Accordingly, lawyers must protect and use such information in the interest of the client.

 Refusing to accept an instruction or ceasing to act

As a general rule, a lawyer is under no obligation to accept an instruction, and can refuse such instruction without stating any reason. A lawyer can also cease to act for the client without stating any reason. If a lawyer resigns from their duty in relation to a pending dispute of their client, the obligations to the client will continue for 15 days following the service of the resignation letter to the client.

Confidentiality

Lawyers are bound by client confidentiality rules and all the information regarding the client obtained by the lawyer in the course of practicing their profession must be kept confidential by the lawyer under the Attorneyship Act. This obligation extends to the assistants, interns and other employees that work with the lawyer. The lawyer can be released from the confidentiality obligation if:

  • The client consents to the disclosure of the information.
  • The disclosure is for the purpose of the lawyer’s defence.
  • The law requires such disclosure.

Within the scope of the lawyer’s professional confidentiality obligation, the lawyer may refuse to testify in judicial or other proceedings under the Civil Procedure Law or Criminal Procedure Law in case that compliance with the obligation requires the lawyer to do so.

Under Turkish law, in-house lawyers are not treated differently and are subject to the same legal professional privilege protection as lawyers in private practice.

Fees

Under the Attorneyship Act (AA), the lawyer and the client can agree on a fee based on a certain percentage of the value of the dispute/ matter value, up to a cap of 25%. Besides, contingency fees are also valid if the conditions of the contingency fee arrangement are not in contradiction of provisions of the AA. Further, the legal fees cannot be below the minimum fees determined under the Minimum Lawyer’s Fee Tariff. The Tariff is set by the Union and based on the type of legal services and the relevant dispute. Lawyers and their clients can also agree on hourly rates, subject to the minimum hourly fees under the Minimum Lawyer’s Fee Tariff.

Fixed and unfixed fees (fees based on a variable such as hours worked) are used for both contentious and non-contentious matters, always subject to the Minimum Lawyer’s Fee Tariff. In practice, clients tend to prefer fixed fees, which are more commonly used in Turkey. On the other hand, hourly rate fees are also regularly agreed on between the lawyer and the client, and commonly used by major law firms.

There are no formal requirements for fee arrangements, but for evidential purposes, they are commonly entered into in writing.

The Attorneyship Law regulates two different types of attorney fees.

The fee the client and attorney agree

The first is the fee the client and attorney agree on by and between themselves for the legal services rendered by the attorney. The second attorney fee is a litigation cost, incurred by the losing party and paid to the other party at the end of a legal proceeding, as regulated under the Attorneyship Law as well as the relevant provisions of the Civil Procedural Law.

The courts grant attorney fees

The second type of attorney fee, which is a litigation cost, is totally independent of any other fee terms agreed by the client and its attorney to provide legal services. The courts grant attorney fees ex officio, together with other court expenses. The courts determine the amount of legal fees according to the Minimum Fee Tariff for Attorneys.

The Tariff sets forth different amounts in consideration of the characteristics of the dispute, as well as the scope of legal services in question. The Attorneyship Law limits the courts’ discretion to order payment of attorney fees, requiring them to award up to only two or three multiples of the minimum tariff.

Article 164(5) of the Attorneyship Law governs the issue of attorney fees granted by a court decision: “The attorney fee to be charged to the opposing party by an order based on the tariff at the end of the lawsuit belongs to the attorney. Such fee cannot be set off or netted due to any debt of the client, nor can it be attached.”

Based on the above article, the general principle is that attorney fees belong to the attorney. However, in practice, because attorneys are not the principal parties to a lawsuit, the court renders its decision in respect of the parties to the lawsuit, not the attorneys.

In this respect, even though the above-mentioned provision under the Attorneyship Law explicitly stipulates that the attorney fee belongs to the attorney and cannot be set off or netted due to any debt of the client, the wording in the courts’ decisions causes confusion and raises the question of whether the attorney fee granted by a court decision may belong to the client.

It is widely accepted in the Court of Appeals’ precedents that courts grant attorney fees to the party that is successful in the lawsuit; not the attorney himself/herself. After all, Article 164 of the Attorneyship Law regulates the internal relationship between the attorney and his/her principal. Subsequent to the losing party’s payment of the granted attorney fees, the principal is then obliged to pay the attorney fee within a reasonable time period to the attorney.

There are, however, certain exceptions to the general principle discussed above. In a Court of Appeals decision dated 14 July 2005, it was held that due to the principle of freedom of contract, the attorney and the client may determine that the attorney fees granted by the court will fully or partially belong to the client.

In this respect, the principle set forth under Article 164/5 is not a mandatory provision, and the attorney and the client can agree otherwise. However, in practice the attorney and the client do not make such agreement, and since the attorney fee granted by the court belongs to the attorney, the attorney personally pursues required legal proceedings for collection of his/her attorney fee.

/ Insights

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