The contractual relationship between attorney and the client is based on the principles of trust and loyalty. It is important for the client to trust the attorney without hesitation and to be able to explain the event and situation that caused the relationship between them accurately and completely. In this way, attorney will also be able to provide the necessary consultancy to the client and represent the client in the most accurate way.
Attorneys shall act in accordance with the duty of care in order to duly fulfil the obligations undertaken by the attorney agreement. Article 34 of Attorneys' Act numbered 1136 ("Attorneys' Act") also provides a regulation on the attorneys' duty of care. As stated in the relevant article, attorneys shall 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 they comply with the professional rules set by the Union of Turkish Bar Associations. Therefore, attorneys are obliged to make inquiries to eliminate the slightest hesitation, to take into account the characteristics of the case, not to expose their clients to unnecessary risk and to choose the safest way when choosing between the various possibilities that they are obliged to take the necessary measures.
The client, along with the trust in the attorney, often shares personal information and documents with the attorney during the contractual relationship. The client shall have confidence in the attorney in all cases, must be sure that the attorney will fulfil the duties duly and will keep the confidences disclosed to the attorney and the attorneys shall keep the information they have obtained. The obligation of attorneys to keep the information they have obtained and not to share it with third parties constitutes a part of the attorneys' duty of care. The attorney is obliged to keep all information provided by the client and not to share it with third parties, this responsibility is part of the attorneys' diligent fulfilment of duties. Article 36 of the Attorneys' Act contains provisions on the attorneys' duty of confidentiality. In accordance with this article attorneys are prohibited from disclosing information that has been entrusted to them or that they come upon in the course of performing their duties both as an attorney and as members of the Union of Turkish Bar Associations and various bodies of bar associations. Attorneys' testimony on matters is contingent upon their having received the client's consent. However, even with this condition satisfied, the attorney may refrain from testimony. Exercising the right to refrain will not entail legal and criminal responsibility.
Since attorneys' disclosure of the client's secrets, even though there are no grounds for compliance with the law, will destroy the relationship of trust in this sense, it will be possible to dismiss the attorney for just cause according to article 174 of Attorneys' Act. In this case, attorney who has been rightfully dismissed by client will not be able to claim a fee from the client. Pursuant to Article 174 of the Attorneys' Act; attorney who discontinues the work he/she has undertaken without a rightful cause may not claim any fee and is obliged to return the fee received.
Clients may also claim compensation for breach of duty of confidentiality by the attorney. In order for the client to claim compensation from the attorney according to the contractual relationship, there should be a breach of the agreement and damage should have occurred. In addition, there must be a causal relation between the breach of agreement and the damage.
Moreover, in the event that the attorney acts in breach of the confidentiality duty, attorney may be held liable under Article 258 of the Turkish Criminal Code numbered 5237. Pursuant to the relevant provision, a public official who discloses or publishes documents, decisions, orders and other notifications given to him/her due to his/her duty or for the same reason, which must be kept confidential, or who makes it easier for others to obtain information by any means, is sentenced to imprisonment from one year to four years. In this way, attorneys may be penalised under Article 258 of the Turkish Criminal Code numbered 5237 if they do not act in accordance with the duty of confidentiality.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
