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Dismissal of Attorney in Turkey
You can find the answers to all your questions about the “Dismissal of Attorney” in our article.
What is the Dismissal of Attorney? Dismissal of an attorney means that the person terminates the contract of attorney with the attorney to whom they signed a Power of Attorney (PoA) for certain reasons or for no reason at all. If the attorney does the work they have taken in a fault, neglects, and does not perform her duty properly; dismissal can be justified.
A proxy contract is a contract based on a special trust relationship between the attorney and the client. With this contract, the proxy; undertakes the execution of a business or the execution of a transaction in the best interest of a client.
The relationship between the attorney and the client can be described as a special type of mandate contract or a sui generis contract (with its own specific structure).
An attorneyship contract is a contract in which the employer commits a certain amount or value as a rule in return for the attorney providing certain legal assistance. It is a contract that imposes obligations on both parties. This contract is established within the framework of a special trust relationship between the attorney and the employer. If one of the parties loses this trust in the other party, they have the right to terminate the contract.
Therefore, both parties have the right to terminate the contract. An attorney can terminate the contract with resignation, and the employer may terminate this contract with dismissal.
In the presence of specific reasons or without reason, the termination of this Power of Attorney agreement of the attorney given by the client is considered a dismissal. With the dismissal, the debt relationship ends with an effect on the future. A verbal statement is not sufficient for the dismissal of the attorney.
Due to the fact that the Power of Attorney relationship is established through a notary public, a Power of Attorney is canceled through the notary public. At the same time, the dismissal process is carried out. However, there is no need to go to the notary public if the attorney and the client agree in writing and make a contract stating that the proxy relationship is terminated.
According to Article 81 of the Code of Civil Procedure; In order for the dismissal of the attorney to be effective in terms of the court and the opposing party, it is obligatory to submit the statement on this matter with a petition or to be recorded, if necessary, to pay the notification expenses to the relevant party in advance.
What is Unjust Dismissal?
Whether there is a reason for dismissal and whether this reason is justified is essential in determining the attorney’s rights, especially the attorney’s fee.
Apart from this, only when the attorney learns the declaration of dismissal, the dismissal is terminated without seeking the reason for the termination of the contract or the justification of the reason. In terms of termination of the contract, it is not sought that the dismissal is based on a reason or that the reason is justified. The just cause is not defined in the law, and the gap is filled by examining it within the framework of the honesty rule by the judge.
Especially; undertaking the attorneyship of persons with whom there is a conflict of interest, violation of confidentiality obligation, dismissal of the case, missing the statute of limitations, non-payment of the collected money to the employer, or the attorney is convicted of a disgraceful crime are shown as justifiable grounds for dismissal. In other cases, there is unfair dismissal.
There are also decisions of the Court of Cassation where it considers the absence of a reason as unfair dismissal of an attorney in case of dismissal and considers the justification of dismissal as “necessity” as unjustified dismissal. The burden of proving that the will for dismissal was used for a just cause is on the client. The attorney is not required to prove that the dismissal was unfair.
Attorney’s Fee in Case of Unjust Dismissal
Article 174 of the Attorneyship Law includes regulations regarding fees in case of dismissal. According to this article;
“The attorney who abandons the follow-up without a justified reason cannot demand any fee and has to return the fee he/she received in advance. In case of dismissal of the attorney, the full fee is paid. However, if the attorney is dismissed due to his/her fault or negligence, the fee does not need to be paid.”
With the said regulation, there is a presumption that if the attorney’s contract is terminated by dismissal, the attorney will be fully entitled to the fee receivable arising from the contract. In the law, it is regulated that the right to remuneration ends in case of fault and negligence of the attorney.
However, an appropriate fee may be requested in return for the activities performed in breach of the obligation and the work performed until the time the dismissal right is enforced. On the other hand, if the nature and intensity of the violation of duty prevent the acceptance of the work done so far, it is impossible to demand a fee.
The relevant regulation, on the one hand, protects the attorney’s remuneration in the face of unfair dismissal. On the other hand, it protects the client if the attorney acts against the debt with faulty behavior. The Court of Cassation states that the evidence should be evaluated in such a way that it can be determined whether the dismissal or resignation is justified.
Compensation Claim
It has been argued that although article 174 of the Attorneyship Law only includes explanations regarding the fee, it is not of a nature to limit the attorney’s demands.
For a claim for compensation to occur, the damage must first be found. In cases where the attorney is dismissed unjustly, the regulation that they will be entitled to the total fee cannot be considered as a penalty condition or compensation.
However, the fact that the attorney is entitled to the full fee as required by law may not mean they will not suffer any other damage. In this case, compensation can be claimed with proof of the damage and fault suffered due to the unfair dismissal.
There is no doubt that the attorney can demand non-pecuniary damages in case the client dismisses the attorney unfairly in a way that harms the personal rights of the attorney.
Further Reading: Unfair Competition Law in Turkey
Keywords: Dismissal of an Attorney, Dismissal of The Attorney, What is Dismissal of an Attorney?
This article was translated from our Turkish website; click to reach the Turkish version.
