The Lawyer’s Responsibility Towards The Client in Turkey

The lawyer’s responsibilities to the client can be categorized under three headings: legal responsibility, criminal responsibility, and professional responsibility (disciplinary responsibility).

I. The Lawyer’s Legal Responsibility Towards the Client

1. General Legal Responsibility

A lawyer has legal liability arising from the failure to properly fulfill the obligations arising from the power of attorney. “If a lawyer fails to fulfill the obligations within the scope of the lawyer-client relationship, and if the elements of fault, damage, and causal link are present, the lawyer will be legally responsible to the client and will be obliged to compensate for the damage. The burden of proving the absence of fault lies with the lawyer.”

The positive damage is the difference between the client’s current financial situation and the situation that would have existed if the lawyer had fulfilled their duty properly. Financial losses, lost profits, missed opportunities, additional expenses incurred by the client, and deprivation of use are included in the positive damage.

If more than one lawyer is responsible for the damage suffered by the client, they will be jointly and severally liable. If a lawyer makes a mistake at any stage, but the loss of the case is due to a faulty decision by the court, the lawyer will not be liable. The fault of the injured party or a third party breaks the causal link.

According to Article 40 of the Attorneyship Law, compensation claims related to the damages suffered must be filed “within one year from the date of knowledge of the right’s emergence and in any case within five years from the date of the event causing the damage.”

2. Violation of the Duty of Loyalty

Failure to fulfill the duty of loyalty requires compensation for the damage caused by the breach of the client’s trust in the lawyer. If the breach causes damage to the client, the client may file a compensation lawsuit in a civil court. In such a case, claims for compensation arising from the contract and those arising from tort may compete.

3. Violation of the Duty of Care

If a lawyer violates the duty of care, legal liability arises. When determining whether the duty of care has been breached, it is evaluated whether the lawyer had sufficient time. “If the lawyer does not feel adequately prepared, they should request a recess to gain the necessary information.”

If the duty of care is not fulfilled, the client may request compensation for non-performance. The client bears the burden of proving the failure to fulfill the duty of care. However, the mere fact that the desired outcome is not achieved does not necessarily indicate a breach of this duty.

For a lawyer to be held liable, the client must have suffered damage, and there must be a causal link between the breach of duty and the damage. The lawyer must be at fault. “The client must prove that the lawyer caused harm through a breach of contractual obligations. Lawyer can escape liability by proving that they were not at fault.”

The provisions in the Attorneyship Law and the TBB Professional Rules, given that lawyering is a public service, are much broader and more specific than the duty of care outlined in Article 506 of the Turkish Code of Obligations (TBK). Thus, lawyers are subject to an ‘enhanced duty of care.’ A lawyer’s duty of care is objective, meaning subjective reasons do not absolve the lawyer of liability.

If a lawyer fails to attend a hearing without a valid excuse, resulting in the case being left pending, and this situation recurs, it is a clear indication that the lawyer has not fulfilled their duty of care. Subjective reasons such as “workload,” “the large and distant nature of the courthouse,” or “conflicting hearing times” do not excuse this failure.

A lawyer is responsible for properly initiating cases based on their legal knowledge. For example, in debt enforcement proceedings, they must know whether the supporting documents are among those listed in Article 68 of the Enforcement and Bankruptcy Law (İİK). If, instead of directly filing a lawsuit for the annulment of the debtor’s objection, the lawyer mistakenly requests the annulment from the enforcement court, this constitutes a breach of legal responsibility.

4. Violation of the Obligation to Personally Perform Services

Under the Attorneyship Law, a lawyer cannot escape liability by proving they exercised care when delegating authority or giving instructions to another lawyer. The delegated lawyer is also responsible for performing the task with due care and without fault. Relationship between the primary and delegated lawyer is one of joint and several liability. The provision of Article 171 of the Attorneyship Law does not apply to a lawyer who, due to one of the matters listed in Article 12, is forced to delegate a previously assumed power of attorney to another.

“Since the client’s relationship stems from the relationship between the lawyer and the sub-lawyer, the client cannot claim more from the sub-lawyer than the lawyer can claim from the sub-lawyer.” A lawyer without the authority to delegate who does so is liable for any damage resulting from the breach of trust. It does not matter whether the delegated lawyer is at fault because the primary lawyer already breached their duty by delegating without authority.

5. Violation of the Duty to Inform

Under the duty to inform, if the lawyer knows the case is unlikely to succeed, even if the client gives consent, this does not absolve the lawyer of responsibility. For shared fault to be claimed, the client must have been informed beforehand about the hopelessness of the case. A lawyer who rejects a significant settlement offer that would benefit the client may face disciplinary action.

If a lawyer pursues a hopeless case, they cannot rely on the fact that they were instructed to do so. They are also liable for the litigation costs if they fail to inform the client about the likelihood of failure, as pursuing an unwinnable case without informing the client is considered negligence.

6. Violation of the Duty to Maintain Files

If a lawyer is negligent in maintaining files, loses or damages various documents, or does not keep them properly, and this results in harm, the lawyer is responsible for compensating the damage.

7. Violation of the Duty to Account

If a lawyer fails to fulfill their duty to account, the client has the right to demand that the lawyer comply with this obligation. The client may also request the return of any money or property the lawyer obtained due to the representation, including any profits, and may seek compensation for damages resulting from the improper performance of the attorney’s duties.

8. Violation of the Duty of Confidentiality

The violation of the duty of confidentiality leads to legal liability for the lawyer if it results in material or moral damage to the client and if there is a causal link between the disclosure of the secret and the damage. A lawyer who, by colluding with the opposing party or engaging in other fraudulent activities, undermines the case or assists the opposing party in the same case may be subject to punishment.

If a client dismisses a lawyer for breaching the duty of confidentiality, this is considered a justified termination. In such cases, the lawyer is not entitled to claim their fees, as the attorney-client relationship is based on trust, and this trust has been broken.

9. Violation of the Duty to Avoid Withdrawal from Representation at an Inappropriate Time

If a lawyer withdraws from representation without just cause and at an inappropriate time, they may be held liable for compensation. The lawyer cannot claim their fees and must refund any advance payments received. According to Article 174 of the Attorneyship Law, in cases of unjust dismissal or resignation, full fees may be demanded as compensation.

II. The Lawyer’s Criminal Responsibility Towards the Client

A lawyer may also face criminal liability when certain obligations are violated. The offenses for which a lawyer may be held criminally responsible include abuse of office, embezzlement, bribery, neglect of duty, disclosure of confidential information, and failure to report a crime by a public official.

According to Article 58 of the Attorneyship Law, for a criminal investigation to be initiated against a lawyer, permission must first be obtained from the Ministry of Justice. Before this permission is granted, a lawyer suspected of committing a crime cannot be questioned, detained, interrogated by a judge, or have their person, home, vehicle, or office searched.

1. Offense of Breach of Trust

Article 155(1) of the Turkish Penal Code (TPC) states: “A person who, having been entrusted with possession of another’s property for safekeeping or to use in a specific way, uses it for their own or another’s benefit or denies the transfer of possession…” The aggravated form of this offense is regulated in Article 155(2): “If the offense is committed concerning property entrusted due to a professional, trade, or service relationship or entrusted for the purpose of managing another’s property…”

In breach of trust cases, the property is given based on a trust relationship. If the act occurs in cases where the lawyer is considered a public official due to the nature of their duties, the crime of embezzlement occurs; otherwise, it is classified as breach of trust.

If the basic form of breach of trust is committed, the lawyer may face imprisonment from six months to two years and a judicial fine. In its aggravated form, the penalty can be from one to seven years of imprisonment and a judicial fine of up to three thousand days.

2. Embezzlement

Embezzlement is defined under Article 247 of the TPC as follows: “A public official who, due to their duty, is entrusted with or responsible for the protection of property, and misappropriates it for their own or another’s benefit, shall be punished.” A lawyer, when considered a public official, may commit this crime. “Public lawyers, by virtue of their position, are considered public officials. Therefore, any property embezzled by a lawyer belongs to the institution and ultimately to society, making the entire society the victim of the crime.”

Violations of the duty to account and instances where a lawyer sells property entrusted to them for their duties may also fall under the embezzlement offense under Article 247 of the Penal Code. However, these are debated topics in legal doctrine, and there is controversy over whether such acts constitute embezzlement or abuse of office. The Court of Cassation generally views these situations as embezzlement.

3. Bribery

Bribery is regulated under Article 252 of the TPC. A lawyer may commit bribery when they are considered a public official. Since bribery involves both the person who gives and the person who receives the bribe, a lawyer can be held criminally responsible from either side. If convicted of bribery, the lawyer may face imprisonment from four to twelve years.

4. Offense of Abuse of Office and Neglect

The crime of abuse of office is defined under Article 257 of the Turkish Penal Code (TPC). According to Article 257: “A public official who, by acting contrary to the requirements of their duty, causes harm to individuals or public damage, or provides unjust benefits to others, shall be punished with imprisonment from six months to two years. A public official who, by failing or delaying to fulfill their duty, causes harm to individuals or public damage, or provides unjust benefits to others, shall be punished with imprisonment from three months to one year.”

In practice, the most common crimes lawyers are involved in are “abuse of office” and “neglect of duty.” Article 62 of the Attorneyship Law states: “A lawyer who abuses the authority or duties given to them either by this law or other laws, or who holds a position in the Turkish Bar Association or a bar, shall be punished in accordance with the provisions of Article 257 of the Turkish Penal Code.”

For a lawyer’s actions to fall under Article 257, the lawyer must be performing an official duty related to their role as a lawyer or a role within the bar association. The Court of Cassation has ruled that actions unrelated to a lawyer’s professional duties do not constitute the crime of abuse of office. Furthermore, for this offense to occur, the lawyer must act contrary to regulations or instructions from the client and use their authority for purposes other than what it was intended for.

The Court of Cassation’s General Penal Assembly has also stated that the concept of harm is not limited to financial loss but includes any violation of personal rights.

Neglect of the duty of care owed by a lawyer may sometimes amount to abuse of office.

5. Offense of Disclosure of Official Secrets

Article 258 of the Turkish Penal Code provides: “A public official who discloses, publishes, or otherwise facilitates the acquisition of secret documents, decisions, orders, or other communications obtained due to their duty shall be punished with imprisonment from one to four years. If this act is committed after the public official ceases their duty, the same penalty applies.”

If a lawyer discloses confidential documents, decisions, or orders obtained through their duties, they may be held liable under Article 258. The secrets protected by this article relate to confidential information stemming from documents, decisions, or orders. A violation of a lawyer’s duty of loyalty may also fall under the scope of the offense of disclosure of official secrets.

6. Offense of Failure to Report a Crime by a Public Official

Article 279 of the Turkish Penal Code provides: “A public official who, in connection with their duty, becomes aware of a crime that requires prosecution in the name of the public and fails to inform the competent authorities or delays doing so, shall be punished with imprisonment from six months to two years. If the offense is committed by a judicial police officer, the sentence is increased by half.”

Whether this article applies to lawyers is debated in legal doctrine. On the one hand, the Code of Criminal Procedure gives lawyers the right to refrain from testifying, while on the other, professional rules and Article 258 of the Turkish Penal Code impose a duty of confidentiality. This creates a contradiction regarding whether lawyers have a legal obligation to report a crime.

III. The Professional Responsibility of Lawyers

1. General Overview of Professional Responsibility

“Professional rules” have been established to maintain and uphold the order and traditions of the profession and to ensure that the duties assigned to lawyers by law are carried out honorably. “Those who practice the profession of law are obligated to be well-acquainted with and assimilate the rules of the profession, along with the law and regulations pertaining to the legal profession.”

Lawyers fulfill their duties as components of the judiciary. Bar associations are professional organizations that oversee lawyers. They conduct this oversight by imposing disciplinary penalties for lawyers’ activities. “However, a lawyer cannot be penalized with disciplinary action as long as their conduct does not damage the dignity and integrity of the profession.” According to Article 23 of the Law on the Legal Profession, trainee lawyers are also required to comply with the professional rules.

The actions that may lead to disciplinary proceedings include:

• Actions that do not conform to the honor and dignity of the legal profession,
• Actions that do not comply with professional order and requirements,
• Failure to adhere to the rules and obligations required of lawyers,
• Failure to act in accordance with the rules of honesty required by the legal profession,
• Engaging in activities that are incompatible with the legal profession,
• Noncompliance with advertising prohibitions.

Since the legal profession is one of diligence, any errors made while practicing can lead to damage to the profession’s reputation and trustworthiness. Violations of Article 34 of the Law on the Legal Profession may arise, necessitating disciplinary action. Additionally, a breach of the obligation to account may also lead to disciplinary responsibility.

2. The Professional Rules of the Union of Turkish Bar Associations and Related Disciplinar Board Decisions

The Union of Turkish Bar Associations has regulated the professional rules. In the fourth section of the professional rules, under Articles 34 to 47 concerning “Relationships with Clients,” the rules that lawyers must adhere to in lawyer-client relationships are set forth. These rules include:

• Article 34: “A lawyer may explain their legal opinion regarding the outcome of a case to their client. However, they must explicitly state that this is not a guarantee.”
• Article 35: “A lawyer may not accept representation of two parties in the same case if one party’s defense may harm the other’s.”
• Article 36: “A lawyer providing legal assistance to one party in a dispute cannot accept the representation of the opposing party, nor provide any legal assistance to them. Lawyers working in a shared office are also bound by the rule not to represent conflicting interests.” In the decision of the Disciplinary Board of the Union of Turkish Bar Associations: “The action of the complained-of lawyer clearly violates this professional rule. The lawyer must carry out their work diligently and without disturbing the public conscience. The complained-of lawyer has violated the trust relationship by initiating enforcement proceedings against their client. Therefore, it has been deemed necessary to uphold the disciplinary penalty with the rejection of the objection.”

When a lawyer handling the affairs of conflicting interests harms their client’s interests, they are responsible for the damages incurred by the client and are subject to disciplinary action.

• Article 37: “A lawyer is bound by professional secrecy.a. The lawyer also observes this criterion when refraining from testifying. The lawyer considers the information learned due to inquiries from those whose cases they did not accept to be confidential. The obligation to maintain professional secrecy is indefinite; separation from the profession does not lift this burden.b. The lawyer takes measures to prevent any breach of professional secrecy by their assistants, interns, and those they employ.”
• Article 38: “A lawyer may refuse a proposed job without providing a reason. They cannot be compelled to explain the reasons underlying their discretion. A lawyer does not accept work that exceeds their time or capabilities. The lawyer must exercise the right to decline cases and prosecutions in a manner that does not harm the client.” In the decision of the Disciplinary Board of the Union of Turkish Bar Associations: “It is established from the file that the complained-of lawyer did not appeal the decision against the client who received a penalty. For this reason, the decision of the Bar Disciplinary Board regarding the disciplinary offense is legally sound, and it is necessary to reject the objection and uphold the decision (censure).” In this decision, the complained-of lawyer harmed the client’s interests by missing the appeal deadline. They have necessitated disciplinary action by exercising the right to decline prosecution in a manner that could harm their client.
• Article 39: “If a client wishes to give power of attorney to a second lawyer after agreeing to the first, the second lawyer must inform the first lawyer in writing before accepting the job.” In the decision of the Disciplinary Board of the Union of Turkish Bar Associations, “The complained-of lawyer accepted the case that the complainant lawyer was following without providing written notice to the complainant, and since the dates of the appointment as an attorney and the dismissal of the complainant lawyer were the same, while the power of attorney and dismissal letter had sequential journal numbers, it is evident that the complained-of lawyer committed a disciplinary offense by personally submitting the dismissal letter to the file.” As a result of this decision, a censure penalty was imposed on the complained-of lawyer. The lawyer is obliged to investigate whether another lawyer is already assigned before submitting a power of attorney and to inform that lawyer if one exists.
• Article 40: “A lawyer may not make statements to the press on behalf of the client unless it is absolutely necessary. The statements must not aim to influence justice.”
• Article 41: “A lawyer may not derive any benefit for themselves by neglecting or abusing their duty in the cases they handle, to the detriment of their client.” In the decision of the Disciplinary Board of the Union of Turkish Bar Associations: “Although the complainant has withdrawn the complaint and the Ministry of Justice has not granted permission for prosecution against the complained-of lawyer, it is clearly evident from the complaint petition and accompanying documents that the complained-of lawyer, taking advantage of the client’s ignorance, ensured that the money in the bank was given to them, provided false information to the client regarding the costs of the case, and failed to repay the money received in trust in a timely manner. The actions of the complained-of lawyer are in clear violation of Article 34 of the Law on the Legal Profession and Articles 3 and 4 of the TBB Professional Rules; therefore, the objection must be accepted, and a disciplinary penalty must be imposed.”

In this decision, the lawyer provided false information to the client, failed to return the money received on time, and benefited themselves, causing harm to the client. Since the legal profession requires acting in favor of the client rather than to their detriment, the professional rules are organized accordingly.

• Article 42: “A lawyer may request an advance to cover the expenses related to the case. Care should be taken that the advance does not exceed the necessities of the case, that the expenditures from the advance are communicated to the client from time to time, and that any remaining money from the advance is returned to the client at the end of the case.” In the decision of the Disciplinary Board of the Union of Turkish Bar Associations: “It has been established from the file that the complained-of lawyer undertook to represent the complainant in a case for the annulment and registration of a title deed, took expenses but did not initiate the lawsuit, and although they refunded a small portion of the money received from the complainant, they did not return the remaining amount. Due to this action, the complained-of lawyer was found guilty of the crime of abuse of office in the public case opened against them.”

The lawyer is responsible for following up on the work of the person for whom they accepted the power of attorney and received expenses. Failing to initiate proceedings after receiving the expenses and not returning the money is both irresponsible and utterly inconsistent with professional rules.

• Article 43: “Money and other valuables received on behalf of the client must be disclosed to and delivered to the client without delay. If there is an account related to the client, the status must be communicated in writing at appropriate intervals.” In the decision of the Disciplinary Board of the Union of Turkish Bar Associations: “It has been established from the file that the complained-of lawyer withheld a portion of the money collected on behalf of the complainant without paying it to them, and it is evident that the complained-of lawyer claimed to retain the amount in relation to the severance and notice compensation receivables from the complainant company. It has been determined that the complained-of lawyer did not use the right of retention in accordance with the law and that the client’s severance and notice compensation receivables were wrongfully retained, violating both the law and professional rules.”

The lawyer must timely return the client’s money and must not withhold it. The right of retention must be exercised in accordance with the conditions set forth in the law.

• Article 44: “A lawyer tries to prevent attacks directed at their colleagues by the client; if necessary, they may withdraw from the representation.”
• Article 45 states: “The lawyer may exercise the ‘lien’ in proportion to their claim.” In the decision of the Turkish Bar Association Disciplinary Board, it was stated: “Regarding the total claim of 60,000.00 TL collected by the accused lawyer, it has been determined that he did not account for this under Article 43 of the TBB Professional Rules, paid a part of the collected amount five months later, and despite there being no attorney fee agreement, thus requiring payment according to the minimum fee schedule, he withheld 20% of the money. Although he claims to have exercised the right of lien, it is evident from the case file and the statements of the accused lawyer that he did not notify this right in writing and exercised it without accounting. The Bar Disciplinary Board’s legal assessment that the actions of the accused lawyer did not constitute a disciplinary offense is incorrect, and it is necessary to impose a disciplinary penalty according to Articles 34, 124, 166 of the Attorneyship Law and Articles 3, 4, 43, and 45 of the TBB Professional Rules.”
• Article 46 states: “Matters handled with judicial assistance shall be conducted with the same diligence as other matters.”
• Article 47 states: “A lawyer who will file a fee lawsuit must first inform the Bar Board. The Bar Board has the authority to express its opinion on this matter.”

3. Disciplinary Penalties

Article 134 of the Attorneyship Law states that disciplinary penalties shall be imposed on those who engage in actions and behaviors that violate the honor of the profession, its order and traditions, and the rules of the profession, or who do not perform their duties in professional practice or do not behave in accordance with the integrity required by their duties. If a lawyer violates some of their obligations, they may receive a disciplinary penalty.

There are five types of disciplinary penalties: warning penalty, reprimand penalty, monetary penalty, dismissal, and disbarment. According to Article 157 of the Attorneyship Law: “The decisions of the Turkish Bar Association Disciplinary Board regarding warnings, reprimands, and monetary penalties are final. They become definitive without being subject to the approval of the Ministry of Justice. The approval of the Ministry of Justice is required for the finalization of dismissal and disbarment penalties.

A. Warning Penalty

According to Article 135 of the Attorneyship Law: A warning is the notification to the lawyer that they need to act more carefully in practicing their profession. “The warning penalty is a reminder that the lawyer needs to act ‘more carefully’ in their professional practice.”

B. Reprimand Penalty

According to Article 135 of the Attorneyship Law: A reprimand is the notification to the lawyer that they are considered faulty in their profession and behavior. “It is the notification to the lawyer that they are considered ‘faulty’ in actions and behaviors that do not comply with professional obligations.” Failing to perform the assigned task with diligence, accuracy, and integrity requires at least a reprimand penalty.

C. Monetary Penalty

The monetary penalty can range from ten thousand to one hundred fifty thousand lira.

D. Dismissal

According to Article 135 of the Attorneyship Law: Dismissal is the prohibition of the lawyer’s or law firm’s professional activities for a period of no less than three months and no more than three years.

E. Disbarment

According to Article 135 of the Attorneyship Law: Disbarment involves the withdrawal of the lawyer’s license, removal of their name from the bar registry, and revocation of the title of lawyer. For law firms, it also means removal from the bar’s law firm registry.

If a lawyer is prosecuted for actions and behaviors considered crimes and is sentenced in a criminal court to more than two years of imprisonment with a final ruling, excluding negligent offenses, or if convicted of crimes against state security, crimes against the constitutional order and its functioning, crimes against national defense, crimes against state secrets, espionage, embezzlement, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy, tampering with tender processes, tampering with the execution of obligations, laundering of proceeds from crime, or smuggling, a mandatory disbarment penalty should be imposed as a result of the disciplinary investigation.

Ece Deniz Vardar
Attorney at Law | Lawyer in Turkey

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