First of all, as a profession “lawyer” has to be defined to explain the lawyer’s duty of care. As stated on the first article of the Attorney’s Code numbered 1136, advocacy is a self employment and at the same time it provides a public service. Advocacy is an independent representative of the defense which is a founder element of the judiciary. For this reason, to regulate legal regulations, to solve all manner of matter of law and legal disputes in pursuant to justice and equity and to provide literally to carry into effect of legal rules at every degree of judicial bodies, arbitrator, official and informal persons, the council and corporation are the purposes of advocacy (1). Attorneys allocate their legal knowledge and experience to the service of justice and persons’ utilization in accordance with these purposes.
Attorneys have to act with full of conscious of their duty of care when they perform their profession in accordance with the above mentioned purposes. Attorneys’ duty of care constitutively arises from these two Codes. There has been the duty of care and loyalty in pursuance of Attorney’s Code numbered 1136 and the duty of care in pursuance of attorney agreement in scope of the Turkish Code of Obligation (Türk Borclar Kanunu, TBK).
In the 34th article of the Attorney’s Code has clearly defined that attorneys have to perform their duty with care, truth and honour to their profession and also obey the Code of Practice which has been determined by The Bar Association of Turkey (Türkiye Barolar Birligi).
The TBB Code of Practice and the Attorney’s Code have determined that attorneys have to perform their profession preserving their independency public faith and confidence for the profession and has to be full of loyalty for the profession. If it has to be more clearly define, as mentioned above attorney as a profession is the defend element of the judiciary and this duty has to be perform independently. For this reason, attorneys have to not accept the work which can damage attorneys’ independence. Because, advocacy is a self employment although at the same time it provides a public service.
If attorneys conduct action and presence against the Code of Practice or advocacy honour, order and tradition either do not perform their duty and professional or do not obey the honesty rule required by that duty, the Attorney’s Code has been regulated disciplinary punishments as a sanction (2).
Attorneys’ actions and presence against the duty of care of attorney bring the liability to damage right along with disciplinary punishment. For this reason, the limit of duty of care should be determined. The limit for determining the duty of care, the presence whether has the qualification of unwarrantable (condemned) for the execution of the service, the practice of law or not (3). As can be understood from this definition, the duty of care is a compulsory attention and interest that have to be shown for not to make a mistake about existing legislation, practice and doctrine within the attorneys’ own legal knowledge and ability by an attorney.
The other source of attorneys’ duty of care is attorney agreements in the scope of TBK. The contracts which are made between third persons and attorneys in the scope of TBK, is an attorney agreement. Because, attorneys undertake to do proxy giver’s work or to transact proxy givers’ process. An attorney who is proxy in accordance with the attorney agreement has some of the debts and obligations to the proxy giver. The first of these debts and obligations regulated in the Article 505 of TBK which is the fulfillment according to the instruction. An attorney who is proxy has to be obeyed the clear instruction of proxy giver. Instruction has been defined that how the proxy do the given work, is a declaration of intent which is unilateral and has to be delivered after drawing up the attorney agreement (4). The attorney cannot work out of proxy giver’s instruction. Within the boundaries of the attorney’s legal knowledge and experiment, the necessary legal actions to do by the attorney are reported to the proxy giver however the decision for legal transaction to be done or not only belong to the proxy giver. Although it is necessary or appropriate work to be done, even if there has not been a clear instruction of the client, the attorney cannot do any work out of attorney agreement. To give an example, even a case can be solved with the peaceful agreement, if the client has not an instruction about the peaceful agreement, the attorney cannot make the peaceful agreement. The exception of the noncompliance with the instructions has been held in the article 505 of TBK. The attorney can be noncompliance with the instructions, if there is not a chance to take a permission from the client and it is clear that the client will give the permission when knows the situation, in accordance with the act of law. Otherwise, if the attorney disobeys the instruction, he/she cannot be deemed to fulfill his profession even if the duty has been performed unless pays the proxy’s damage, if any.
Attorney’s second obligation against the proxy giver is the obligation of personal performance, duty of care and loyalty which is held in the Article 506 of TBK. The attorney should personally fulfill the work however it can be understood from the Code’s clear statement that the profession can be done by other attorney when the attorney is authorized to do so or in a compulsory situation or the situation is convenient for the custom. The mutual trust relationship on the attorney agreement is the main reason of the personal fulfillment. As stated in the Article 507 of TBK, the attorney has to take necessary care for choicing that person and giving instruction when the work has been fulfill by a third party. The attorney has to fulfill the profession with duty of care but the attorney has not to be compulsory to successfully complete all work. For example, the attorney fulfills the work in the best way within the boundaries of his/her legal knowledge and experience, nevertheless this work should not be necessary to be successful for the client. The attorney is responsible for the duty of care to get the result end of the work however the attorney is not responsible for the work’s result (5). At this point, the limit of the care which is fulfill the work has been held in the Article 506/3 of TBK. Accordingly to this act of law, the presence of a prudent attorney who is working on similar work and services has been based on to determine the liability arising from the attorneys’ duty of care.
The attorney’s other obligation is the duty of loyalty, however it is similar with the other obligations and liabilities, the distinctive consideration is this duty is continued after the end of the attorney agreement. The attorney should protect knowledge about the client and use them in accordance with the client’s interest the in scope of the duty of loyalty. The duty of care can be broken in accordance with the other act of codes’ application (TCK, CMK, HMK, etc.) but the duty of care has to be obeyed always except such these acts of codes.
Consequently, because of the advocacy is a public service and also the defend element of the judiciary, the advocacy has inherent the duty of care which has to be fulfill with the presence worthy to professional dignity in the scope of legal regulation, the doctrine.
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(1) The second article of Attorney’s Code.
(2) The 134th and 135th article of Attorney’s Code.
(3) İyimaya, Ahmet, Ankara Barosu Dergisi 1986/2, Avukatlıkta Özen Borcu, page 184
(4) Güner, Semih, Avukatın Özen Yükümlülüğü, Türkiye Barolar Birliği Dergisi 2000/2 page 559, ,Süheyl Donay, Vekilin Talimata Uyma ve Dürüstlükle Hareket Etme Borcu, Batider, C. V, Y. 1970, page 735, Tandoðan, a.g.e., ah. 436
(5) Yavuz, Cevdet, Türk Borçlar Hukuku Özel Hükümler, page 642, Beta Yayınları, 7. Bası
