Comprehensive Study Notes on the Attorneyship Law and Professional Rules of Turkey

Legal Profession as a Public Service and Its Foundations

According to Article $1$ of the Attorneyship Law, the legal profession is defined as a public service and an independent profession. Attorneys operate under the supervision and inspection of bar associations and the Union of Turkish Bar Associations, which are public professional organizations with legal personalities. The core purpose of the profession, as outlined in Article $2$ of the Law, involves supporting the freedom to seek justice, organizing legal relations, and solving all types of legal problems and disputes in accordance with justice and equity. Lawyers dedicate their legal knowledge and experience to the service of justice and the benefit of individuals. The public interest is central to these activities, which is why official departments and judicial authorities are obligated to assist lawyers in the performance of their duties.

Confidentiality and the Obligation of Secrecy

The obligation of secrecy involves protecting client secrets as stipulated in Article $36$ of the Attorneyship Law and Professional Rule $37$. This duty falls under the broader obligation of loyalty, which targets the protection of the client's interests even after the legal relationship has ended. While a lawyer's obligation of professional diligence ends when the power of attorney concludes, the obligations of loyalty and secrecy continue indefinitely. Exceptions to this rule exist if the client provides explicit consent for disclosure or if the disclosure serves the client's interests. Additionally, the obligation of secrecy may be lifted if disclosure is strictly necessary for the fulfillment of the legal task assigned to the lawyer.

Immunity of Defense and Procedural Safeguards

Lawyers possess a specific immunity related to their claims and defense to ensure they can perform their duties without fear of punishment for the words used or documents submitted. If a lawyer feared that their professional statements could be used against them in a criminal context, they might hesitate to provide a complete defense, thereby failing their duty. Furthermore, according to Article $137$ of the Attorneyship Law, in any investigation or prosecution conducted against a lawyer, the allegations must be clearly communicated in writing, and the lawyer must be granted a minimum of $10$ days to submit their written defense.

Withdrawal from Legal Aid and CMK Assignments

Under Article $179/3$ of the Attorneyship Law, a lawyer assigned to a case through the Legal Aid system or the Criminal Procedure Code (CMK) cannot simply refuse the task without consequences. If a lawyer wishes to withdraw from such a duty, they must notify the bar association within $15$ days of being informed of the assignment. Crucially, they must also pay the fee determined in the professional tariff for that specific task to the bar association. According to the Ankara Bar Association CMK Application Center Directive, Articles $19/4$ and $19/5$, withdrawal is only possible under legal conditions. The lawyer remains responsible until the Presidency Council reaches a decision. If a lawyer withdraws for reasons other than those legally mandated, it must be based on a valid excuse approved by the CMK Executive Board, and no fee will be paid to the lawyer in such cases.

File Inspection and Photocopy Rights

Article $46$ of the Attorneyship Law specifies that a lawyer, their intern, or their secretary may handle file-related tasks. Lawyers and interns are authorized to inspect case files and enforcement files even without a power of attorney (POA), and relevant officials are required to fulfill these requests. However, copies of papers or documents from the file are only provided if the lawyer submits a power of attorney. Examples or copies that are not requested to be certified are not subject to fees. This right to inspect and obtain information extends beyond courts to include judicial organs, law enforcement, other public institutions, state enterprises, private or public banks, notaries, insurance companies, and foundations, as per Article $2/3$ of the Law.

The Right and Obligation to Refuse Work

Article $37$ allows an attorney to refuse a proposed task without providing a specific reason, provided the refusal is communicated to the client immediately. This right is restricted in certain cases, such as when the Bar President appoints a lawyer after two others have refused the work, or when a lawyer is appointed as a defense counsel by the Bar under CMK Article $150$. Once work has commenced, Article $174$ allows a lawyer to stop following a case even without a justified reason, but in doing so, they forfeit all claims to fees and must return any advance payments received. Conversely, Article $38$ dictates situations where a lawyer is obligated to refuse work, such as when the request is illegal or unjust, if the lawyer previously served as a judge, prosecutor, or expert in the same case, or if they have a conflict of interest involving a previous client in the same matter.

Witnessing and Professional Secrecy Protocols

Lawyers are generally protected from being forced to testify regarding professional activities under Article $36/2$. Testifying requires the consent of the client, although even with consent, the lawyer retains the right to refuse to testify. Professional Rule $37/a$ emphasizes that the measure of professional secrecy must be the basis for deciding whether to testify. However, for matters that do not fall under professional secrecy, lawyers are treated like regular citizens and must testify when summoned. If a lawyer does not exercise their right to abstain and is called as a witness, a subpoena (ihzar) can be issued if they fail to attend the court, as they are expected to assist the judiciary in matters unrelated to their professional mandate or confidential secrets.

Professional Fees, Advances, and Retention Rights

Article $164/4$ strictly prohibits taking cases for free, with the exception of close relatives, provided the Bar Association is notified and provided with a detailed explanation of the necessity. According to Professional Rule $42$, lawyers may request an advance to cover litigation expenses. Article $166$ grants the lawyer a right of retention and a right of priority over the client's money and goods held by the lawyer until fees and expenses are paid. In the event of a lawyer's death, these rights transfer to their heirs. If cases are abandoned due to a settlement or agreement between the parties, Article $165$ establishes that the parties are jointly and severally liable for the lawyer's professional fees.

Communication and Service of Documents Between Lawyers

Under Article $56/4$ of the Attorneyship Law, lawyers are authorized to serve judicial papers and documents directly to the opposing party's lawyer in cases where they have received a power of attorney. This can be done without a specific court order from the judicial authority. A copy of the served documents must be submitted to the court file, provided that necessary fees and taxes are paid. This provision allows for expeditious legal proceedings by permitting direct service regardless of whether the opposing side has officially designated their attorney as the recipient of the specific document within the court system.

Sub-Power Delegation and Responsibilities

Article $171/2$ states that if a power of attorney allows for the delegation of authority (tevkil), a lawyer may follow the work jointly with another lawyer or transfer it entirely to another. Unless specified otherwise in a written contract, no further permission from the client is needed for cases opened after the original power of attorney was issued. Under Article $171/3$, the primary lawyer remains personally and jointly liable for any damages or faults caused by the delegated lawyer. An exception to this liability exists under Article $12$ for lawyers who must transfer work due to being forced to work elsewhere for a specific job. If the primary lawyer is dismissed, the authority of the delegated lawyer also becomes invalid automatically.

Right of Retention Conditions and Document Custody

Professional Rule $45$ and Article $166$ specify that the lawyer's right of retention must be proportionate to the actual amount owed for fees and expenses. Using this right to withhold more than what is owed could constitute the crime of abuse of trust. The lawyer must notify the client in writing of the exercise of this right, including a detailed account of the funds collected and the amount of fees claimed. Regarding documents, Article $39$ requires lawyers to store documents for $3$ years after the conclusion of the power of attorney. This requirement expires $3$ months after a written notice is sent to the client telling them to retrieve their documents.

Fee Agreement Structures and Statutory Limits

While written fee agreements are not strictly mandatory, Article $164/2$ outlines how fees are determined in their absence. For cases where the value can be measured in money, the fee is set between $10\%$ and $20\%$ of the won amount, provided it is not below the minimum wage tariff. For cases without a monetary value, the minimum wage tariff applies. The maximum limit for fees based on the value of the outcome or success is capped at $25\%$. Agreements exceeding this ceiling are only valid up to the $25\%$ limit. Per Article $163/2$, once a fee has been paid, its invalidity cannot be claimed, and the invalidity of a single provision in a contract does not invalidate the entire agreement.

Bar Organs and Operational Contingencies

According to Article $79$, the organs of the Bar Association consist of the Bar General Assembly, the Bar Board of Directors, the Bar Presidency, the Bar Presidency Council, the Bar Disciplinary Board, and the Bar Audit Board. In cases of a lawyer’s death, disbarment, or temporary inability to work, Article $42$ dictates that the Bar President, upon request or with client consent, will appoint another lawyer to manage the files temporarily. Statutory time limits for the legal work are suspended during the transfer of files, though this suspension cannot exceed $3$ months. A lawyer appointed by the Bar for such purposes cannot refuse the task without a justified excuse or an unavoidable reason.

Restrictions on Members of Parliament and Bar Enrollment

Article $43/2$ explicitly prohibits Members of Parliament from practicing law during their tenure. While Article $12$ considers being a Member of Parliament as a status compatible with the profession, it clarifies that the lawyer may not actually perform the job of an attorney while serving in the legislature. It was noted as an example that in the June $2015$ election, out of $550$ total parliamentarians, $93$ were lawyers, distributed as follows: AKP had $48$ lawyers, CHP had $28$, HDP had $11$, and MHP had $6$. Furthermore, Article $66$ requires every lawyer to be registered on the bar list (levha) of the region where they continuously practice. While registered, they may perform legal work anywhere in the country as long as it is not continuous.

Bars to Admission and Professional Incompatibilities

Article $5$ lists several impediments to being admitted to the bar, including being sentenced to more than $2$ years in prison for a deliberate crime or being convicted of "disgraceful crimes" such as embezzlement (zimmet), extortion (irtikâp), bribery (rüşvet), theft (hırsızlık), fraud (dolandırıcılık), forgery (sahtecilik), or smuggling. These bars remain even if the sentence is deferred, converted to a fine, or pardoned. Other bars include having lost the status of a judge or civil servant through a final disciplinary decision, bankruptcy without restoration of reputation, or having an active certificate of insolvency (aciz vesikası). Article $11$ prohibits combining law with jobs involving monthly wages (unless specified as an exception) or commercial activities. Article $13$ also prohibits a lawyer from taking cases handled by a judge or prosecutor if they are the spouse or a relative up to the second degree by blood or marriage.

Advertising Prohibitions and Use of Titles

Article $55$ and the TBB Advertising Prohibition Regulation restrict lawyers from using any titles on signboards or stationary other than "Attorney" and their academic titles. Prohibited titles include "Retired Judge," "Expert," "Patent Attorney," or former political roles like "Minister." Signboards may only include name, academic titles, the floor of the office, contact info, and the Bar emblem. Advertising aimed solely at gaining fame is strictly prohibited. Professional Rule $7$ allows only the notification of address changes through announcements that do not have the character of an advertisement. Additionally, the legal profession cannot be the subject of a trademark registration.

Disciplinary Penalties and Criminal Procedures

Article $135$ lists five disciplinary penalties: Warning (uyarma), Reprimand (kınama), Fine (para cezası) ranging from $10,000$ to $150,000$ Turkish Liras, Suspension (işten çıkarma) from $3$ months to $3$ years, and Disbarment (meslekten çıkarma). Disciplinary actions are independent of criminal trials; per Article $140/3$, a lawyer acquitted in a criminal trial may still receive a disciplinary penalty if the action constitutes a professional violation. However, if the lawyer is cleared because the incident never happened or they were not the perpetrator, disciplinary action is generally barred. Statute of limitations for discipline involves a $1$-year period for the Board to open an investigation after learning of the event, a total $3$-year limit for prosecution from the time of the incident, and a $4.5$-year limit for issuing a penalty.

Special Investigation and Prosecution of Lawyers

According to Article $58$, investigations into crimes committed by lawyers arising from or during their duties require prior permission from the Ministry of Justice. The local prosecutor cannot take statements or decide on non-prosecution without this permission. In cases of flagrante delicto involving heavy crimes, general provisions apply, but the prosecutor must personally lead the investigation. Article $59$ details the prosecution process: if the Ministry grants permission, the file is sent to the heavy penal court nearest to the incident site. If the court decides to open the final investigation (son soruşturma), the trial takes place at the heavy penal court of the incident site. During these stages, the lawyer cannot be brought to court by force (ihzar) for their defense, nor can the court order their arrest during the investigation phase.

Professional Solidarity and Courtroom Conduct

Professional Rule $32$ dictates that a lawyer must provide copies of their petitions and important documents to the opposing colleague even if not requested. Rule $39$ requires a second lawyer to inform the first lawyer in writing before accepting a case the first lawyer is already managing. Regarding courtroom conduct, Rule $21$ allows a lawyer to leave a hearing if their personal or professional honor is attacked, but they must immediately report the incident with reasons to their Bar association. Finally, Article $35/A$ allows lawyers to invite opposing parties to a settlement before a trial begins. If a settlement is reached, the minutes signed by the parties and their lawyers have the status of a final court judgment (ilam) according to Article $38$ of the Enforcement and Bankruptcy Law.

Duty to Provide Account and Manage Client Property

Under Professional Rule $43$ and Article $508$ of the Turkish Code of Obligations, a lawyer is required to inform and transfer to the client any money or values received on their behalf without delay. If there is a pending account, the situation must be reported in writing at appropriate intervals. Failure to fulfill this duty of accounting is considered an infringement of the obligations of loyalty and professional diligence. This can result in civil liability for damages, including paying interest on delayed funds, as well as disciplinary sanctions under the Attorneyship Law and criminal prosecution under the Turkish Penal Code for offenses such as breach of duty or abuse of confidence."