Dismissal of the Lawyer and Its Consequences
Generally
Dismissal is the termination of the power of attorney given to the lawyer or the representation document given to him by the attorney for certain reasons. Dismissal of a lawyer 174 of the Law on Lawyers. it is arranged in the article. According to this article; “A lawyer who refuses to continue the work he has undertaken without showing a justified reason cannot charge any fee and must return the fee he has received in advance.
In case of dismissal of the lawyer, his/her fee shall be paid in full. However, if the lawyer is dismissed due to defect or negligence, the fee does not need to be paid. Pays payable in advance according to the contract in case the lawyer is not paid in case the lawyer does not have an obligation to start work. For this reason, any responsibility that may arise belongs to the business owner. The same provision applies to liability in case the lawyer is deprived of following up the work and obtaining the result due to the non-fulfillment of other pay terms in the written contract.”
Paid paid attorney fee As it can be understood from the provision of the article, in case the lawyer is dismissed without just cause, but the lawyer is dismissed due to his own fault or negligence, in other words, there is no need to pay attorney fee due to just cause.[1]
In the light of the above explanations, the grounds for the justified dismissal, the person/persons who may dismiss the lawyer, the place to apply for the dismissal of the lawyer and the fate of the attorney’s fee in case of dismissal will be discussed in detail below.
THE NECESSARY REASONS FOR THE DISMISSAL OF THE LAWYER
According to the provisions of the Law on Attorney’s obligations and the provisions of the Turkish Code of Obligations on lawyer’s obligations and judicial decisions, the reasons that can be considered as a just cause of termination are included in the lawyer’s list. According to this
Failure to fulfill the obligation of due diligence,
Failure to provide enlightening information to the client and restriction of the client’s right to receive information and request an account,
Engaging in behavior that requires disciplinary and criminal investigation,
Damage to the trust in the attorney-client relationship. As a result of defective behavior and transactions,
Absence from the hearing without excuse,
Missing deadlines related to the work carried out,
Initiating enforcement proceedings by the lawyer against the client while the lawyer relationship continues,
The loss of the client due to the violation of the obligation to notify the client. paying expenses as soon as possible,
If it leads to a conflict of interest against the client,[2]
Any violation of the client’s other rights specified in the law may be the lawyer’s justified reason for termination.
Here it is necessary to open a separate bracket regarding the ”debt of care”. The lawyer’s obligations as a lawyer are regulated in Articles 389 and its continuation of the Code of Obligations, and according to Article 390 of the Code of Obligations, a lawyer is obliged to fulfill his duty as a lawyer with loyalty and care to his client. Due to the duty of loyalty, the lawyer is obliged to take care of the best interests of his client and to avoid behaviors that may harm him.
However, 34 of the Lawyer’s Law. “Lawyers are obliged to perform their duties with diligence, honesty and honor, to perform them in a manner befitting the sanctity of this duty, and to behave in a manner befitting respect and trust.” Required by the title of deputy.” Due to the fact that the profession of a lawyer is a public service, 390 of the Code of Obligations. it is a much more comprehensive and special arrangement than the lawyer’s duty of care regulated in the article.
Accordingly, the lawyer is obliged to carry out and conclude the work he undertakes with care and for the benefit of the client, as well as to carefully avoid attitudes and behaviors that would damage the client’s trust in him. Otherwise, if a client who does not have confidence in his lawyer dismisses his lawyer, it should be accepted that this dismissal is justified.
PEOPLE WHO CAN DISMISS A LAWYER
The person/persons who authorize the lawyer by proxy may dismiss the lawyer and terminate the attorney relationship if any of the above-mentioned reasons exist. However, another third party who has nothing to do with the power of attorney does not have the power of dismissal.
WHERE TO APPLY FOR THE DISMISSAL OF THE LAWYER
A client who will dismiss his lawyer may do so, as a rule, by sending a letter of dismissal to his lawyer through any notary public. In addition to this method, there is a decision of the Supreme Court stating that dismissal can also be carried out by other means.
For example, in a document entitled “Release” submitted to the court without sending a notarized letter of release in a decision of the Supreme Court of Appeals, the Supreme Court returns the case and execution file of the document in which the person who appointed the lawyer declares that he is a lawyer, subject to the attorney’s fee, personally follows the file from this date and releases the lawyer from all kinds of duties and responsibilities, which constitutes dismissal.[3]
The Fate of Attorney’s Fees in Case of Dismissal
The attorney’s fee is generally the amount or value of the legal assistance provided by the lawyer (AT. 164/1). The value of the case or judgment or a certain percentage of the money, not exceeding twenty-five percent, may be decided as an attorney’s fee (AT. 164/2). Attorney fees cannot be agreed for lawyers below the minimum wage tariff. If the case is heard free of charge, the situation is notified to the board of directors of the bar association (Article 164/4).
In cases where an agreement on the attorney’s fee cannot be reached or there is no written fee agreement between the parties, the fee agreement is unclear or disputed, or the fee agreement’s provision on fees is deemed invalid, the amount between ten percent and twenty percent of the claim price on the date of finalization of the decision is determined by the competent authority to review fee objections as the attorney’s fee for the winning part of the case.
Dec.10 Below the minimum wage tariffs in cases and jobs whose value can be measured in money. The minimum attorney fee tariff is applied in cases and matters whose value cannot be measured in money (AT m. 164/4). At the end of the case, the proxy fee to be deducted from the other side according to the tariff will belong to the lawyer. This fee cannot be deducted, deducted and seized due to the debt of the workplace owner (Article 164/5).
Paid paid attorney fees Article 174/2 of the Law on Lawyers regulates whether the lawyer’s fee will be paid in case of dismissal of the lawyer. According to this article; “In case of dismissal of the lawyer, his fee will be paid in full. However, if the lawyer is dismissed due to defect or negligence, the fee does not need to be paid.” Therefore, in case of wrongful termination, the lawyer has the right to demand the full attorney’s fee in exchange for the work he undertakes, no matter at what stage.
Pays paid attorney fees In case of termination for just cause, the lawyer may request payment of the attorney fee for the works that have been finalized and finalized as of the date of just termination, but it is not possible to request payment of attorney fees due to the works that have been finalized as of the date of just termination in case of termination for just cause. the dismissal has been finalized and finalized as of the date. Because the attorney relationship is a whole and Decertification will apply to all lawsuits and transactions between the parties.[4]
For example, the Supreme Court of Cassation ruled in a decision that if a lawyer is dismissed after a decision to overturn, the attorney’s fee should be paid in favor of the lawyer, and the local court continued the trial in accordance with the decision to overturn. decision.[5] However, the first issue that needs to be determined here is whether the dismissal is justified or unjustified.[6]
In case the lawyer is dismissed in the absence of a lawyer’s fee agreement, Article 164/4 of the Law on Lawyers states: “… In cases where an agreement cannot be reached on the lawyer’s fee or there is no written fee agreement between the parties, or the fee agreement is not clear or disputed, or the fee agreement Decrees that the fee provision is invalid; An amount between ten percent and twenty percent of the receivable price on the date of finalization of the decision is determined by the competent authority to examine wage objections as a lawyer’s fee, provided that it is not lower than the applicable minimum wage Decrees.
According to the provision ”Lawsuits and deeds whose value can be measured in money …”, the other party may charge a contractual power of attorney fee at the rate of 10-20% of the value of the case whose fee has been paid and a power of attorney fee over the same value. . [7]
On the other hand, if a power of attorney is granted, provided that the transaction to be performed depends on a certain period of time, no power of attorney fee or power of attorney fee will be charged if it is not completed within this period. the lawyer is dismissed, he may be entitled to attorney’s fees.
In one of the decisions of the General Assembly of Civil Chambers of the Court of Cassation, it is stated that the completion time of the cases to be opened is not at the initiative of the lawyer, and the trial process may be prolonged for many different reasons. apart from the will of the attorney, this issue should be known by the lawyer, in this regard, it will not be possible to mention that the right of termination has arisen due to the fact that the works subject to the contract cannot be completed within 2 years. and for this reason only, the lawyer has accepted that the defendant client has the right to dismiss the plaintiff client’s lawyer if the defendant client is obliged to perform his duty of attorney faithfully and meticulously and causes the cases not to be closed.
The defendant client has the right to dismiss the plaintiff lawyer of the plaintiff client, who cannot be completed within 2 years due to his own fault and negligence, and therefore the lawyer who does not cause the cases to be completed within 2 years due to his fault and negligence. the behavior is subject to attorney fees. [8]
Result
As a result, the first issue that should be considered when terminating the lawyer’s employment is whether there are justified grounds for termination. In case of finding justified reasons for termination, the lawyer may request payment of the proxy fee for the works concluded as of the termination date, but the attorney fee will not be paid for the works with justified reasons for termination. as of the date of dismissal, it has not yet been finalized and finalized. However, if there is no justifiable reason, the lawyer will have the right to demand the full attorney’s fee in exchange for the work he undertakes, no matter at what stage.
However, in both cases where the dismissal is justified or unjustified, the dismissal of the lawyer must be notified to the court and the notification from this notification must be made to the director, not to the lawyer. In a decision, the Court of Cassation overturned the decision that the case should be considered unopened because the lawyer did not attend the hearing on the notification made to the dismissed lawyer, on the grounds that the notification should be made to the lawyer. manager.[9]
Another important point is the 77th amendment of the Code of Civil Procedure No. 6100. as stated in the article “The trial cannot be postponed to another day due to the resignation, dismissal or failure of the lawyer to review the file.” it is the judgment.[10] Therefore, if the lawyer is dismissed, the hearing date is notified to the director and cannot be postponed to another day.
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