Introduction
The contract of mandate is set out under the Turkish
Code of Obligations. Article 386 of the Code of Obligations outlines the
general scope of the contract of mandate. It defines it as follows: “A
contract of mandate is a contract whereby the mandatary undertakes to perform a
task or legal transaction on behalf of the mandator.” As can be understood
from this definition, it is a contract in which the mandatary undertakes to
perform a task. In a mandate concerning legal acts, the mandatary is obliged to
carry out legal transactions for the benefit of the principal, particularly to
acquire, exercise, and transfer subjective rights. [1].
A contract signed between a lawyer and a client also
constitutes a contract of mandate. However, unlike a general contract of
mandate, under the Legal Practitioners Act, “fee” is an essential element of
the contract. Through this agreement, the lawyer undertakes to provide legal
assistance, while the client undertakes to pay a fee in return for the legal
services rendered. Determining the fee in the contract is not mandatory; it may
be agreed upon either before or after the performance of the work. If no written
or oral agreement on the fee is made between the parties, the fee is determined
in accordance with the Legal Practitioners Act and the Minimum Attorneyship Fee
Tariff. [2]
The attorney fee agreement is regulated under Article 163 and other provisions of the Legal Practitioners Act. According to Article 163 of the Act, the agreement has three essential elements: specific legal assistance, fee, and the mutual consent of the parties. Specific legal assistance constitutes the mandatory element of an attorney fee agreement. A contract that does not pertain to specific legal assistance cannot be considered an attorney fee agreement. Another element, the fee, is the payment made by the client in return for the lawyer’s performance of the work. Finally, the lawyer and the client must reach an agreement regarding the fee and the provision of specific legal assistance by the lawyer. While the lawyer’s obligation consists of providing specific legal assistance, the client’s primary obligation is the payment of the fee.
Discharge of Attorney
Article 174 of the Legal Practitioners Act contains
specific provisions regarding the payment of fees in the event of the
termination of the attorney fee agreement due to either discharge or
resignation. First, it is necessary to explain the meaning of discharge and
resignation of the attorney. The discharge of the attorney refers to the client
terminating the attorney fee agreement, either for specific reasons or without
any reason. Such termination may always be carried out unilaterally. No formal
requirement is necessary for the termination of the attorney fee agreement, and
likewise, no justification is required.
If the attorney fee agreement is terminated by
discharge, it must first be determined whether the discharge was based on a
justified reason. The attorney’s fee will be determined according to the
existence of such justification. Paragraph 2 of Article 174 of the Legal
Practitioners Act provides: “In case of the attorney’s discharge, the full
fee shall be paid. However, if the attorney has been discharged due to fault or
negligence, no fee shall be payable.” Therefore, if the attorney is
discharged due to fault or negligence, they are not entitled to the fee. If
discharged without fault or negligence, the attorney is entitled to the full
fee.
An Analysis of the Decision, bearing the Basis number 2024/666
and the Decision number 2025/224 and dated 9.4.2025, of the General Assembly of
Civil Chambers of the Court of Cessation
“[…] It has been understood that, in light of all
these explanations and upon evaluation of the concrete case, the plaintiff
attorney, acting as the attorney of the defendant, filed a claim for TRY
30,000.00.- against a third party due to the abuse of mandate, under the file,
bearing the Basis number 2010/423, the 2nd Civil Court of First
Instance of Karşıyaka on 17.12.2010, and that during the proceedings, an expert
report determined that the value of the immovable property at issue in the case
was TRY 919,720.00.- following which an attorney fee agreement was executed on
01.03.2012, and that according to Article 3 of the agreement, the attorney fee
to be paid for the legal services agreed upon by the parties under the contract
was set at TRY 92,000.00.-, and that the claim was not amended, and that the
case was dismissed on 04.04.2012, and that the decision was appealed, and at
this stage, the plaintiff attorney was discharged on 29.03.2013, and that as a
result of the appellate review, the decision was overturned with the reasoning
that the claim should have been accepted, and that the case, subsequently
pursued by another attorney, resulted in the upholding of the decision in favor
of the claim for TRY 30,000.00.-, and that thereafter, a subsequent lawsuit for
the annulment of the objection was filed to claim the remaining amount.
[…] Since there is no dispute between the parties
regarding the validity of the attorney fee agreement dated 01.03.2012, and the
unlawfulness of the plaintiff attorney’s discharge, it must be accepted that,
pursuant to paragraph 2 of Article 174 of the Legal Practitioners Act, which
provides for the full payment of fees in the event of the attorney’s discharge,
the plaintiff attorney is entitled to the full fee stipulated under the
agreement, namely TRY 92,000.00.-. This is because the contractual relationship
between the attorney and the client is established upon the execution of the
attorney fee agreement, based on the mutual declarations of intent of the
parties regarding this matter. Upon the formation of the agreement, both
parties acquire the rights and obligations arising from the contract. One
of the fundamental principles recognized in contract law is that, after the
offer and acceptance declarations regarding the formation of the contract are
made in mutual agreement— in other words, after the contract is validly
concluded—it becomes binding on the parties. According to the principle defined
as binding force of the contract, in the absence of any reasons justifying a
departure from this principle, it is unacceptable that, despite the
existence of a valid attorney fee agreement between the attorney and the
client, the contract would be treated as if it had never been concluded due to
an unjustified discharge.
[…] During the proceedings of the partial claim filed, the plaintiff attorney’s unjust discharge resulted in the deprivation of the opportunity to file the additional claim stipulated under the agreement. Although the right of discharge may always be exercised, whether justified or unjustified, according to the principle of “Principle of honesty” set forth in Article 2 of the Turkish Civil Code Nr. 4721, “Everyone must comply with the rules of honesty when exercising their rights and fulfilling their obligations. The legal system does not protect the manifest abuse of a right.” Although the Specialized Chamber has mentioned the principle that the fee for services not yet commenced or rendered cannot be claimed, it is clear in this present case that this situation arose from the defendant’s unjust discharge. In this circumstance, as the defendant must bear the consequences of their own actions, it must be accepted that the plaintiff attorney, who was unjustly prevented from filing the additional claim, is entitled to receive the full attorney fee stipulated under the agreement.”
In this present case, an examination was conducted
regarding the attorney fee of the discharged attorney. First, the concepts of
mandate fee and attorney fee were explained. It was determined that the
attorney’s discharge was not based on a justified reason. [3] If the discharge
is unjust, the attorney is entitled to full fees even for work that has not
been completed as of the date of discharge. The fact that the attorney could
not continue the work due to the discharge, and thus saved effort and labor, does
not prevent entitlement to the full fee. Indeed, this principle is set out
under paragraph 2 of Article 174 of the Legal Practitioners Act, which provides
that “In case of the attorney’s discharge, the full fee shall be paid.”.
In case of an unjust discharge, it is not necessary to
await the conclusion of the case for the attorney to be entitled to the fee.
The attorney’s right to the fee becomes due and payable upon the unjust
discharge, meaning that the attorney may claim the attorney's fee. The
discharged attorney will no longer be able to continue representing the case.
In such a situation, the case will be pursued either directly by the client or
by another attorney authorized under a new mandate. In both instances, there is
no need to wait for the conclusion of the case for the attorney to claim the
fee. Whether the case pursued by the client or another attorney results in a
favorable or unfavorable outcome is irrelevant, and the attorney may still
claim the mandate fee. Even if the case is left unpursued following the unjust
discharge, the attorney may claim the fee.
Conclusion
Paragraph 2 of Article 174 of the Legal Practitioners
Act provides that, in case of an unjust discharge, the attorney is entitled to
the full fee. Under the above-cited decision of the Court of Cessation, it is
likewise recognized that the attorney is entitled to the attorney's fee in
cases of unjust discharge. As explained above, it is not necessary to wait for
the conclusion of the case in order to earn the attorney's fee. In situations
of unjust discharge, the attorney's fee becomes due and payable, and the
attorney is entitled to receive this fee.
Fatma Şengün, Legal Intern
References:
1.Türker Yalçınduran:
Vekâlet Sözleşmesinde Ücret (Fee under Contract of Mandate), Ankara
2007, p. 35.
2. Tülin
Kurtoğlu: Akdi vekâlet Ücreti ve Avukatın Hukuki Sorumluluğu (Contractual Attorney’s Fee and the Attorney’s Legal
Liability), Ankara 2016, p. 24, 25
3. Decision,
bearing the Basis number 2024/666 and the Decision Number 2025/224 and dated 9.4.2025,
of the General Assembly of the Civil Chambers of the Court of Cessation
