
- I. Attorney-Client Agreement and the Concept of Obligation
- II. Lawyer's Obligations to the Client
- 1. Lawyer's Duty to Inform
- 2. Duty of Loyalty
- 3. Duty of Care
- 4. The Attorney's Obligation to Personally Fulfill Their Duties
- 5. The Obligation to Avoid Withdrawal from Representation at Inappropriate Times
- 6. The Obligation to Execute the Power of Attorney in Accordance with Client Instructions
- 7. The Obligation to Follow the Most Reliable Method for Protecting and Defending Client Interests
- 8. The Obligation of the Attorney to Guide and Advise the Client
- 9. The Obligation to Maintain Files for Every Task Undertaken
- 10. The Attorney's Obligation to Account
- 11. The Attorney's Obligation to Maintain Confidentiality
I. Attorney-Client Agreement and the Concept of Obligation
1. Attorney-Client Agreement
The attorney-client agreement is a contract that imposes obligations on both parties and concerns the performance of work. Although this agreement is very similar to a power of attorney contract, it is a unique (sui generis) contract.
According to Article 163 of the Attorneyship Law: “The attorney-client agreement is freely structured. The attorney-client agreement must encompass a certain legal service and amount or value. Unwritten agreements are proven according to general provisions. Contracts dependent on conditions that are not contrary to law are valid. Contracts exceeding the ceiling for attorney fees are valid only up to the ceiling amount specified in this Law. The invalidity of an executed contract cannot be claimed. Except in cases of nullity, the invalidity of one provision of the attorney-client agreement does not invalidate the entire agreement.”
2. Definition of Obligation
Obligation can be defined as actions that parties are required to fulfill within the scope of a debt relationship, which, if not fulfilled, will lead to liability. These obligations arise from law, contract, or the principles of objective good faith and may lead to the complete non-performance of the obligation, or incomplete or defective performance, depending on the nature of the debt relationship.
II. Lawyer’s Obligations to the Client
1. Lawyer’s Duty to Inform
The term “inform” means “to eliminate darkness and make visible” and “to provide information on a problem.” In legal terms, the concept of informing refers to the presentation of matters that may affect individuals’ willingness to engage in legal transactions, along with their positive and negative aspects, in a comprehensible manner.
The lawyer is obliged to inform the client as objectively as possible about the risks and advantages of the lawsuit to be filed. Source of the duty to inform is either law or the principle of good faith. The lawyer’s obligation to inform actually stems from the principle of honesty. The lawyer must identify and diagnose the legal event related to the matter for which they have been given a power of attorney. Lawyer should dedicate time to meet with the client, as the clarification of the matter is achieved through the information received from the client. “The lawyer’s duty to inform is in close reciprocity with the client’s duty to provide information.”
The lawyer must express their opinion clearly and in a manner that the client can understand. They should not conceal anything related to the case. “In Turkish legal doctrine, this obligation was explicitly mentioned in the 1990s.” The lawyer should explain to the client the consequences of providing incomplete information.
Scope of the duty to inform is determined based on the characteristics of the specific case. The lawyer should ask questions directly to the client. Additionally, there is no obligation for the lawyer to conduct an investigation. The information provided should be related to legal knowledge. The lawyer is not required to provide information on matters outside legal knowledge. “In cases where the attorney takes over the representation in an ongoing lawsuit, the lawyer cannot rely solely on the information provided by the client; they must assess the status of the case.” In some situations, the lawyer may need to examine land registries, other records, and documents to obtain relevant information.
The lawyer informs not only for the benefit of the client but also as part of their public duty and for the opposing party. “As a rule, the lawyer is justified in trusting the accuracy of the information provided by the client.”
Conducting additional research to ensure the accuracy of the information provided does not fall under the obligation to inform. Situations that fall outside the scope of the lawyer’s duty to inform can be classified as information related to matters that cannot be the subject of the attorney-client agreement, information that is unlikely to affect the client’s will, information regarding matters not conveyed by the client, and information that is not included in the field of law.
2. Duty of Loyalty
A. General Duty of Loyalty
“In the duty of loyalty, the lawyer is obliged to protect the client’s interests in a manner consistent with the trust placed in them, both during the performance of the power of attorney and after the termination of the power of attorney. “The attorney fulfills this obligation by acting in a manner beneficial to the client and refraining from actions that would harm the client.” Due to the special trust relationship between the lawyer and the client, the lawyer has certain responsibilities and obligations.
The client’s high level of trust in the lawyer imposes responsibilities on the lawyer. Duty of loyalty forms the basis for prohibitions against serving both parties, confidentiality obligations, informing the client about the dispute, carrying out the necessary instructions, and the obligation to return what has been received or account for it in the performance of the power of attorney.
The lawyer should not consider their personal interests and must act with the client’s interests in mind, avoiding actions that would harm the client’s interests.
B. Obligation to Avoid Entering into a Power of Attorney Relationship
Article 38 of the Attorneyship Law states that if the lawyer has represented or provided an opinion to a party with conflicting interests in the same matter, they must refuse the power of attorney offer. They must reject the offer if they have previously taken on the matter as a judge, arbitrator, public prosecutor, or official, or if they are required to assert the invalidity of a document or contract they have drafted. In such cases, the lawyer has a duty to refrain from accepting the case.
“The lawyer must reject a power of attorney offer if they have been approached for legal assistance in a matter that is explicitly prohibited by law or if they are offered to collaborate in transactions pursued for fraudulent purposes. Since lawyers are subject to Article 502 of the Bar Association Regulation, they are deemed to have accepted an offer if they do not reject it immediately after receiving it.“
“It is debatable whether an attorney-client agreement made in violation of the duty to refrain from entering a power of attorney relationship, as stated in Article 38, will have legal effect in civil law.” Not every attorney-client agreement that violates the duty of loyalty is invalid. However, there may be sanctions related to private law, criminal law, and professional law for the violating lawyer. “Since the obligation to avoid entering into a power of attorney relationship aims to protect the client, it would be appropriate to consider the agreement valid in favor of the client.“
C. Obligation to Avoid Representing Conflicting Interests
A lawyer cannot represent parties with conflicting interests in the same legal dispute. In such cases, the lawyer would violate their duty of loyalty. Representing both sides is also not appropriate from a professional ethics perspective. “Even if the attorney-client agreement is not deemed invalid, the lawyer may face sanctions specific to criminal law and professional law, and if the clients suffer damages as a result, the lawyer may be required to compensate them.“
This obligation is not very strict for advisory legal activities. However, the lawyer should not exhibit behavior that indicates a preference for one party over the other. According to general opinion, lawyers working together in a shared law office should also refrain from representing two parties with conflicting interests in the same case. When the lawyer receives another power of attorney offer, they must evaluate the situation and, if the interests of the person they are representing would be harmed, reject the power of attorney offer. “Dual representation also poses a risk of misleading the court.“
“It is clear that having the capacity to represent in a lawsuit is a condition of the case, and the lawyer providing legal assistance to one of the parties in a dispute cannot accept the power of attorney from the other party with conflicting interests or provide any legal assistance. This rule also applies to lawyer representatives who are married.” It is evident that the lawyer must fulfill this obligation to protect the interests of the client.
D. Obligation to Avoid Changing Sides
The lawyer must not engage in activities for one party in the same dispute and later for the other party. It is never ethically acceptable for a lawyer to provide consultancy to one party for a potential lawsuit, receive instructions from them, and then represent the other party in the dispute. This obligation also applies when the client is a legal entity.
3. Duty of Care
One of the most important obligations that a lawyer must adhere to is the duty to perform their tasks with care, accuracy, and trustworthiness. The lawyer is obliged to carry out the power of attorney with diligence. “The attorney is responsible not for the failure to achieve a result but for not performing the activities necessary to achieve that result with care.“
Article 34 of the Attorneyship Law contains the following general rule: “Lawyers are obliged to perform their duties with care, accuracy, and dignity in a manner befitting the sanctity of their role, and to act in a way that reflects the respect and trust required by the title of lawyer.”
According to Article 506 of the Code of Obligations, “The attorney is obliged to perform the mandate properly to the client.” “It is stated in doctrine that the determination of the lawyer’s duty of care will take into account their specific circumstances.” “The proper, reliable, and diligent performance of the power of attorney also encompasses the obligations of accountability to the client and the return of documents as stated in Article 508 of the Code of Obligations.” Article 34 of the Attorneyship Law stipulates that the lawyer is obliged to perform the power of attorney with diligence.
In fulfilling the duty of care, the attorney should demonstrate the utmost care according to their experience and avoid behaviors that would hinder a successful outcome. Since the Attorneyship Law is a specific regulation in relation to the provisions of the Code of Obligations regarding the power of attorney, it has priority in application.
The lawyer’s activities in advisory and representation roles must be carried out with care, which is tied to the obligation of legal examination. Failing to conduct a review and control, believing that deadlines will be automatically considered by the court or that the judge or prosecutor will take them into account as part of their duties, incurs responsibility on the lawyer.
The lawyer must know the law. They are required to be familiar with both the laws and judicial decisions. The lawyer must follow and utilize both the relevant legal provisions and the developments in doctrine and practice regarding the subject. “An example of a violation of the duty of care is when a lawyer follows a case based on a decision they know has been overturned by the Court of Cassation and uses an unapproved photocopy of the judgment in this process.“
If there are multiple legal avenues to achieve a goal, the lawyer should inform the client of the options that align with their legal opinion as well as other paths with a high likelihood of success, as expressed in judicial decisions and academic works.
“The lawyer must pursue the client’s interests in the most reliable and risk-free manner possible.” “Specialization results in the expectation of a more careful legal service.” The lawyer is also under the duty of care regarding the selection of those they employ and ensuring that they perform their tasks diligently. If the lawyer’s error arises from not being well-acquainted with the case file or overlooking significant details in the case, the lawyer’s liability is engaged.
4. The Attorney’s Obligation to Personally Fulfill Their Duties
The attorney is obligated to personally perform the work they have undertaken. “While the obligation of personal performance arises in a professional context, Article 171 of the Attorneyship Law, which is a specific provision, will be applied and compared with the regulation in the Code of Obligations.“
According to Article 171, “the attorney must pursue the work they have undertaken until completion, in accordance with the provisions of the law and the terms of the written contract. If the attorney is authorized to delegate the power to another in the power of attorney, unless there is a contrary provision in the written contract, they may follow up the work in conjunction with another attorney or delegate it to another attorney.“
This article limits the possibility of delegation only to cases where the authority to delegate exists in the power of attorney. Actions taken by another attorney under this authority are considered as those of a sub-agent. The delegating attorney has entered into an obligation to fulfill the duties of the power of attorney they accepted. “The delegating attorney is jointly liable for the damages caused by the faults of the colleague to whom they delegated the work. Colleague entering the case in place of the attorney is in the position of a sub-agent or replacement attorney.“
The notary is obliged to investigate ex officio whether the attorney wishing to delegate has the authority to do so. The attorney must provide the notary with the original power of attorney or a copy certified by themselves.
5. The Obligation to Avoid Withdrawal from Representation at Inappropriate Times
As a general rule, the attorney is obligated to follow the work they have undertaken to completion and to inform the client. However, since the attorney-client relationship is based on a special trust relationship, the attorney can withdraw from the representation without providing a reason. The client can also dismiss the attorney without providing a reason. However, the attorney must exercise this right in a timely manner, which arises from the obligation of loyalty.
Withdrawal from representation must occur at a time when the client can protect their own interests or appoint someone else as their attorney. “However, if the client has exhibited behavior that undermines their trust in the attorney, if carrying out the duties of representation harms the attorney’s honor, or if the continuation of the relationship cannot be expected, the attorney has the right to withdraw from representation at any stage of the case. Especially if there is a situation that contradicts the law or morality, which justifies one party’s failure to fulfill the contractual obligation in terms of good faith, it should be accepted that the attorney can withdraw from representation at any stage. In such cases, the attorney will be entitled to the full fee.“
According to Article 37 of the Attorneyship Law, the attorney may refuse the offered work without providing a reason. However, this refusal must be communicated to the client without delay.
6. The Obligation to Execute the Power of Attorney in Accordance with Client Instructions
The attorney-client agreement grants the client the right to instruct the attorney on how to fulfill their duty of representation. Instructions in the power of attorney can be thought of as a form of guidance. “Client instructions limit the attorney’s freedom of action.”
The attorney is expected to receive general guiding instructions from the client. Since the client’s legal knowledge is likely not as sufficient as that of the attorney, detailed instructions may not be possible. The attorney will evaluate the existing information in the manner they deem correct. However, there are exceptions to this rule. “For example, the attorney is not obligated to act according to instructions that are unjust, contrary to good faith, or illegal. In such cases, the client should be warned, and if the client insists, the attorney is not required to follow the instructions and has the right to withdraw from the power of attorney contract.“
According to Article 505 of the Code of Obligations, the attorney can deviate from client instructions if they cannot obtain permission from the client and if it is clear that the client would grant permission under such circumstances. This deviation must not pose a risk of harming the client’s interests.
Essentially, the attorney cannot take any action without the client’s instructions. This rule is absolute regarding measures and steps that would significantly affect the client’s interests and wishes, such as filing a lawsuit, accepting a lawsuit against the client, reaching a settlement, extending a payment period that goes against the client’s intent, or resorting to legal remedies or enforcement measures.
The attorney does not have the responsibility to conduct the power of attorney work based on their own decisions. Attorney has the obligations to clarify the legal matter and inform the client. The final decision on how to proceed rests with the client. “However, it can be stated that the attorney should not comply with instructions that clearly result in adverse consequences for the client. Even if the client insists, the attorney should not resort to legal avenues that are evidently unlikely to yield positive results.“
“If an appeal has been made out of fear of missing a deadline without thoroughly investigating the chances of success, and it later turns out that there are no chances of success, the client should be immediately informed, and it should be conveyed that they must waive the appeal. If the client insists, the attorney should withdraw from the representation.“
7. The Obligation to Follow the Most Reliable Method for Protecting and Defending Client Interests
To discuss following the most reliable method, there must also be other, albeit riskier, options available. “The most reliable method expresses the obligation of the attorney to seek security and excellence at the highest level without having to choose between multiple options. This obligation is based on the duty of care, and in cases of breach of obligation, it will be more appropriate to determine the attorney’s responsibilities based on each specific case.“
The application of the principle of the most reliable method can be challenging in concrete cases. Not only in terms of litigation but also when carrying out legal transactions, the attorney must propose the path that is more assured and appropriate to the client’s interests.
8. The Obligation of the Attorney to Guide and Advise the Client
The attorney is obligated to inform the client about the consequences and economic risks of the actions to be taken. Practical outcomes must also be taken into account. “The attorney cannot give advice that involves circumventing legal rules.“
Consultation activities are also subject to fees, and providing free consultation services is against professional ethics. “Due to the potential harm to the competitive environment among attorneys, consultation activities must also be carried out for a fee.”
The attorney’s thoughts and information regarding the likelihood of success in a case should not be interpreted as a guarantee of success. An attorney cannot guarantee success. If the probability of success is low, the attorney should inform the client of this. It is the attorney’s obligation to establish a legal basis for opinions that are not yet firmly established in judicial decisions or doctrine but are in favor of the client. If, in a situation with low chances of success, the client is informed and a decision is made on whether to file a lawsuit, and as a result, the attorney files a lawsuit on behalf of the client, we cannot say that the attorney has violated their obligation.
Although the figure may not be very clear, we assume that the client knows that court proceedings and the activities of the representing attorney will incur certain costs. If it is necessary for the client to know the exact cost of the lawsuit, they will ask their attorney about it and learn. If the client makes such a request, then the attorney must inform the client about the costs. Furthermore, even if the case is won, if it is known that the defendant lacks the financial capacity to pay the amount ordered, this situation must also be communicated to the client. “The obligation to choose a more certain path also includes choosing a more cost-effective option.”
Many disputes can be resolved amicably, either before or during the lawsuit. In cases where there are institutions or mediations aimed at amicably resolving the dispute, the attorney has certain duties, including the obligation to consult on the path to resolution. The attorney should assess the situation with the client and inform them about the advantages and disadvantages of resolving the dispute amicably. However, the final decision is made by the client. The attorney is tasked with actively protecting the client’s interests during settlement negotiations and ensuring that the settlement is as favorable as possible for the client.
The attorney should advise the client on the necessary precautions to protect them from avoidable dangers and hazardous situations. “Protecting the client from unnecessary initiatives and providing guidance in matters such as tax law and financial law falls within their consultative duties.”
9. The Obligation to Maintain Files for Every Task Undertaken
According to Article 52 of the Attorneyship Law, the attorney is required to maintain files for every task they undertake or regarding every matter referenced in their written opinions. Article 53 imposes the obligation to record necessary discussions in minutes. Maintaining files and minutes that serve as evidence in matters of responsibility and fees is beneficial for both the client and the attorney.
“The attorney is obligated to keep the documents entrusted to them for a period of three years from the conclusion of the work. Conversely, if the attorney has sent written notification to the client regarding the return of the documents, the obligation to keep them lasts for three months from the date of notification (Attorneyship Law Article 39/1). However, an attorney who has not been paid for expenses incurred and their fees is not obliged to return the documents in their possession. This right of the attorney has been incorrectly termed ‘retention right’ in the heading of Article 39.”
“The attorney is obliged to protect any valuables, money, or securities entrusted to them against possible loss or destruction and to return them to the client as soon as possible upon request.”
“The obligation to maintain files is also a secondary obligation arising from the attorney-client agreement. All documents related to the tasks undertaken, whether obtained from the client or a third party, must be properly preserved.”
According to Article 39 of the Attorneyship Law: “The attorney has no obligation to return documents in their possession until their fees and incurred expenses have been paid.” From this, we can understand that the attorney is obliged to return the documents they hold related to the case once their fees and expenses have been paid.
The notes and drafts maintained by the attorney regarding the tasks undertaken belong to the attorney, and the client cannot request these. The attorney is the owner of these documents.
“If, while the case is ongoing, the client dismisses their attorney and appoints another attorney for the remainder of the case, the dismissed attorney must return the documents. If the return of the documents incurs costs for the client and they have not provided an advance, the attorney is not obliged to do so.”
A. Obligation to Store Documents in Their Possession
According to Article 39 of the Attorneyship Law: “The attorney is obliged to keep the documents entrusted to them for three years from the termination of the power of attorney.” The obligation to store includes documents that need to be returned. When destroying documents at the end of the storage period, care must be taken to ensure that the confidentiality obligation is not violated, and that the documents are no longer readable after destruction.
B. Obligation to Allow the Client to Examine Documents in Their Possession
“The client has the right to examine the file documents. The attorney is obliged to allow the client to examine the documents they are obliged to return.”
10. The Attorney’s Obligation to Account
The client has the right to know how the attorney is handling their case. Obligation to account generally manifests as an obligation to provide information, which arises with the establishment of the attorney-client agreement. If the attorney deems it necessary, they may provide information even without the client’s request.
An attorney managing multiple cases for a client must account for each case upon its completion. However, if the client has previously consented that this is not necessary, the attorney is not required to account for every case.
11. The Attorney’s Obligation to Maintain Confidentiality
A. General Obligation of Confidentiality
Within the framework of the attorney-client agreement, the attorney has an obligation to maintain confidentiality regarding the client. This obligation continues even after the case has concluded.
Confidentiality encompasses not only the details of the transaction or ongoing work but also the discussions and the circumstances surrounding the legal issue at hand, as well as the method of assignment. Ultimately, whether a matter is confidential is determined by the will of the person to whom the secret belongs. The objective element of secrecy is that it is not public knowledge. What is known by everyone cannot be confidential.
The attorney’s professional secret includes matters acquired during the practice of their profession that relate to the client’s private life, which is not known to the public. According to Article 36 of the Attorneyship Law, a secret that is prohibited from disclosure is defined as one that would cause harm to the client in society or would affect their material interests, whether it harms them or not, or a matter that the client has carefully considered to be a secret. This constitutes the obligation to keep contractual secrets.
“Secrets must be learned in the course of practicing the profession and must be directly related to it. If information learned through the attorney-client relationship is disclosed but cannot be understood in relation to a specific person, the obligation to maintain professional secrecy has not been violated. Accordingly, the attorney may discuss a matter with a third party without violating their obligation of loyalty to the client, provided they do not disclose the names of the parties involved. Here, the third party must not be able to understand or recognize a specific material condition or a specific party.”
“Attorney interns and individuals employed by attorneys are also obliged to maintain confidentiality. The boundaries of the attorney’s obligation to keep secrets are determined when the obligation to disclose what constitutes a secret arises. The disclosure of the client’s secrets poses a risk of undermining the fundamental right to defense. Obligation of confidentiality allows the client to trust the attorney and to communicate all information related to their dispute without hesitation. The client’s political views, business operations, business relationships, and tax-related matters are also included in the professional secret. The attorney must keep the client’s secrets from the client’s relatives, heirs, other attorneys, and administrative authorities.”
B. The Attorney’s Release from the Obligation of Confidentiality
a. Consent of the Client
According to Article 36 of the Attorneyship Law, if the client has consented, the attorney is relieved of their obligation to maintain confidentiality. For consent to be valid, the person must make the decision of their own free will. It is sufficient for the client to express their consent implicitly.
If the client is not fully competent, as the protection of a secret is a right closely tied to the person, the consent of their legal representative is not considered valid. The exception is valid consent regarding matters related to property.
“The client’s consent relieves the attorney from the obligation of confidentiality but does not impose an obligation to testify. In a situation where it is clear that the disclosure of the secret will not yield the desired result, the attorney must inform the client.” The obligation of loyalty continues even after the death of the client. However, if the deceased client had previously released the attorney from their obligation of confidentiality, then the obligation ceases. Nevertheless, in this case, the attorney can still refrain from testifying.
b. State of Emergency
The question of whether a defense attorney who becomes aware of a crime that requires severe punishment must disclose it is debated. One view holds that there is an obligation to report. The opposing view, which argues that an individual does not have the right to undermine the constitutional order established by the Constitution based on the rule of professional secrecy, does not align with the nature of the defense profession and the right to defense, as well as the fact that the obligation of confidentiality also considers public interests, according to Sungurtekin. Performing the duty of the profession serves as a legal justification for violating Article 279 of the Penal Code.
However, Sungurtekin believes that in the fight against crimes such as terrorism, organized crime, and human trafficking—crimes that require urgency and necessity—the obligation to maintain professional secrets can be placed in the background. However, this does not mean that there is an obligation to report. These crimes target fundamental human rights such as the right to life, bodily integrity, and property rights, and it is considered possible to place the attorney’s professional secrecy in the background in light of superior values for their protection.
c. Threat of Damages Based on Private Law, Criminal Law Sanction, or Disciplinary Punishment Under Professional Law
“In situations where the attorney is subject to a claim for damages based on private law or is likely to face criminal sanctions or disciplinary punishment under professional law, the attorney must insist that the client’s insistence on maintaining confidentiality is considered fraudulent, and in this context, the attorney should be considered relieved of their obligation to maintain secrecy.”
The obligation of confidentiality and the right to refuse to testify and provide information also grant the attorney the right to keep file documents confidential. According to Article 219 of the Code of Civil Procedure, the parties and their attorneys are required to submit the documents specified by the law to the court, and it cannot be said that an attorney who fulfills this obligation violates their obligation of confidentiality. “If the attorney is being prosecuted for a crime they did not commit, it is possible for us to accept that they are no longer bound by the professional secret.”
An attorney who is involved in a criminal or civil case may need to disclose the client’s secret in the context of defending themselves. And this cannot be conditioned upon the client’s consent. “However, even in this situation, the attorney must not exceed the limits of defense. They should not disclose unnecessary information.”
Ece Deniz Vardar
Attorney at Law | Lawyer in Turkey
Call us : +90 212 909 86 34
Send mail : info@ballawfirm.com