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Bar Associations' Professional Rules query

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Old 03-03-2018, 15:49   #1
Konuk

 
Varsayılan Bar Associations' Professional Rules query

I am looking at the attorneyship law (Avukatlık Kanunu) and the professional rules of the Turkish Bar Association (TBB Meslek Kuralları) and would like to understand a point of law. Article 34 of the attorneyship law says (in translation):

Attorneys are under the obligation to carry out the duties they assume with care, accuracy, and integrity in a manner becoming the sacredness of their profession; to comport themselves in a manner suitable to the respect and trust the profession requires; and to comply with the professional rules set by the Union of Bar Associations of Turkey.

This suggests to me that the professional rules have the sole purpose of regulating the behaviour of lawyers. This is reflected in the professional rules which for the most part seem to say that 'a lawyer must do this' or that 'a lawyer must not do that'. There are however a few of the rules whose wording (in translation) seems to create rights for lawyers. For example:

"38. The lawyer may decline to render services without having to state a reason. ..."

Does this create a right by which a lawyer may evade an obligation specified in a contract with their client? Does it modify the usual operation of the Turkish Code of Obligations?

Another example:

"45. The attorney may exercise his/ her right of lien in proportion to the money owed to him/ her."

Does this create a 'right of lien' for lawyers that did not otherwise exist? Or perhaps the implication is really that the attorney may exercise his/ her right of lien ONLY in proportion to the money owed to him/ her. For example, if the client owes the lawyer for fees or expenses and the lawyer collects property on behalf of the client then presumably the lawyer can only keep the minimum neccessary to cover what is owed by the client.

So in summary. I am worried about the English translation and am wondering ... do the professional rules merely regulate lawyers or do they also create rights for lawyers?

Thanks in advance.
Old 22-04-2018, 15:22   #2
Av.Kadir ORUÇ

 
Varsayılan

Alıntı:
Yazan Konuk
I am looking at the attorneyship law (Avukatlık Kanunu) and the professional rules of the Turkish Bar Association (TBB Meslek Kuralları) and would like to understand a point of law. Article 34 of the attorneyship law says (in translation):

Attorneys are under the obligation to carry out the duties they assume with care, accuracy, and integrity in a manner becoming the sacredness of their profession; to comport themselves in a manner suitable to the respect and trust the profession requires; and to comply with the professional rules set by the Union of Bar Associations of Turkey.

This suggests to me that the professional rules have the sole purpose of regulating the behaviour of lawyers. This is reflected in the professional rules which for the most part seem to say that 'a lawyer must do this' or that 'a lawyer must not do that'. There are however a few of the rules whose wording (in translation) seems to create rights for lawyers. For example:

"38. The lawyer may decline to render services without having to state a reason. ..."

Does this create a right by which a lawyer may evade an obligation specified in a contract with their client? Does it modify the usual operation of the Turkish Code of Obligations?

Another example:

"45. The attorney may exercise his/ her right of lien in proportion to the money owed to him/ her."

Does this create a 'right of lien' for lawyers that did not otherwise exist? Or perhaps the implication is really that the attorney may exercise his/ her right of lien ONLY in proportion to the money owed to him/ her. For example, if the client owes the lawyer for fees or expenses and the lawyer collects property on behalf of the client then presumably the lawyer can only keep the minimum neccessary to cover what is owed by the client.

So in summary. I am worried about the English translation and am wondering ... do the professional rules merely regulate lawyers or do they also create rights for lawyers?

Thanks in advance.

Dear Konuk,

Let me make explanations in my own words and with my own translations.

You must look just above the 34 th Article of the Attorneyship Law No.1136, and consider it with its title;

"PART SIX
Rights and Duties of the Attorney
In general
Article 34: Attorneys are obliged to carry out the duties which they assumed in a manner befitting the sacredness of this mission with diligence, accuracy and honour and to behave in accordance with respect and confidence that attorneyship title required and to obey the Professional Rules of Conduct which have been specified by the Union of Turkish Bar Associations."

Yes this Article shows an Attorney how to act. When this rule is breached and the Attorney has been complained to his/her Bar Association because of his/her violation, he/she may be imposed disciplinary sanctions/penalties. He or she may even be prohibited from working as an attorney temporarily or constantly.

Attorneyship Law No.1136 is about Attorneys and Attorneyship profession. Definition of the attorneyship, how this profession is carried out and what are the organs of attorneys and how they will function are defined in this Law.

In the 38 th Article of the Attorneyship Law No.1136 is said;

Obligation of rejecting of a task;
"Article 38- Attorney;
a) Has to reject a proposal if he or she considers the proposal made to himself/herself unjust/unlawful or he or she finds out later that it was unjust/unlawful.

Here law says that the attorney must not accept the proposals that are unjust/unlawful. In my opinion it says that the attorney must always stay in legal frame, work with legal tools/instruments."

In the 45 th Article of the Professional Rules of Conduct it says;
45. The attorney may exercise his or her “right of retention” in proportion to his or her receivable.

In fact “the right of retention” is specified in the 39 th and 166 th Articles of the Attorneyship Law No.1136.

In the 39 th Article of the Attorneyship Law No.1136 it is roughly said;

"The attorney is not obliged to give the file sample or the documents back to his client if his/her fees have not been paid to him/her."

And in the 166 th Article of the Attorneyship Law No.1136, it is roughly said;

"If the attorney made the expenses from his/her own budget for the case in the name of his/her client and has not been paid his/her attorneyship fees, he or she may excercise “right of lien” in proportional to expenses he or she made or his/her unpaid attorneyship fees."

In fact “right of lien” is also defined in the Turkish Civil Code and in the Turkish Code of Obligations. The one mentioned in the Law No.1136 is only a specially defined kind of “right of lien”. And it does not contradict with other provisions of Laws.

So the Law No.1136 is a Law which regulates Attorneyship Profession and the Attorneys’ Rights and Duties. The rights vested to the Attorneys can not be excercised casually/haphazardly by them. Their acts against rules are inspected/checked by the Disciplinary Boards of the Bar Associations and sometimes they are tried by independent courts.

Please try to read the articles thoroughly and the legal texts with their titles so that you can get the meaning better.

Best Regards
Kadir ORUÇ
Attorney
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