As a matter of general knowledge worldwide, the concept of the attorney fee represents the fee terms agreed between attorney and client for the legal services the attorney renders to the client. However, a different attorney fee regulated under the Turkish Attorneyship Law and bearing features of a litigation cost is a new concept for many foreign clients, and causes confusion in practice.
The Attorneyship Law regulates two different types of attorney fees. The first is the fee the client and attorney agree on by and between themselves for the legal services rendered by the attorney. The second attorney fee is a litigation cost, incurred by the losing party and paid to the other party at the end of a legal proceeding, as regulated under the Attorneyship Law as well as the relevant provisions of the Civil Procedural Law.
The second type of attorney fee, which is a litigation cost, is totally independent of any other fee terms agreed by the client and its attorney to provide legal services. The courts grant attorney fees ex officio, together with other court expenses. The courts determine the amount of legal fees according to the Minimum Fee Tariff for Attorneys. The Tariff sets forth different amounts in consideration of the characteristics of the dispute, as well as the scope of legal services in question. The Attorneyship Law limits the courts' discretion to order payment of attorney fees, requiring them to award up to only two or three multiples of the minimum tariff.
Article 164(5) of the Attorneyship Law governs the issue of attorney fees granted by a court decision:
The attorney fee to be charged to the opposing party by an order based on the tariff at the end of the lawsuit belongs to the attorney. Such fee cannot be set off or netted due to any debt of the client, nor can it be attached.
Based on the above article, the general principle is that attorney fees belong to the attorney. However, in practice, because attorneys are not the principal parties to a lawsuit, the court renders its decision in respect of the parties to the lawsuit, not the attorneys. In this respect, even though the above-mentioned provision under the Attorneyship Law explicitly stipulates that the attorney fee belongs to the attorney and cannot be set off or netted due to any debt of the client, the wording in the courts' decisions causes confusion and raises the question of whether the attorney fee granted by a court decision may belong to the client.
It is widely accepted in the Court of Appeals' precedents that courts grant attorney fees to the party that is successful in the lawsuit; not the attorney himself/herself. After all, Article 164 of the Attorneyship Law regulates the internal relationship between the attorney and his/her principal. Subsequent to the losing party's payment of the granted attorney fees, the principal is then obliged to pay the attorney fee within a reasonable time period to the attorney.
There are, however, certain exceptions to the general principle discussed above. In a Court of Appeals decision dated 14 July 2005, it was held that due to the principle of freedom of contract, the attorney and the client may determine that the attorney fees granted by the court will fully or partially belong to the client. In this respect, the principle set forth under Article 164/5 is not a mandatory provision, and the attorney and the client can agree otherwise. However, in practice the attorney and the client do not make such agreement, and since the attorney fee granted by the court belongs to the attorney, the attorney personally pursues required legal proceedings for collection of his/her attorney fee.
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.
