This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Vekaletname ve Avukatlık Ücreti: Bilinmesi Gerekenler.
There are two different lawyer's fees and they should not be confused: the fee agreed between lawyer and client, and the costs the court awards against the losing side. That award belongs to the winning party's lawyer. The fee itself is agreed freely, but it cannot be set below the minimum fee scale.
Two things should be settled at the start of any instruction: the scope of the power of attorney and the fee.
This article covers the kinds of power of attorney, the acts requiring special authority, how fees are fixed, and who receives the costs awarded against the other side.
Issuing a Power of Attorney
A power of attorney is executed before a notary. What is needed: identification, and the lawyer's name and bar registration details.
The kinds:
- General litigation power of attorney, covering the general authority to conduct proceedings.
- Power of attorney with special authority, containing the additional authority the law requires for certain acts.
- Divorce power of attorney, which is executed with a photograph.
If you are abroad, a power of attorney can be executed at a Turkish consulate.
Ask your lawyer in writing which authorities are needed before executing it; a missing authority means a fresh power of attorney later and delays the case.
Which Acts Need Special Authority
Article 74 of the Code of Civil Procedure is explicit: without express authority a representative may not:
- settle, or challenge a judge
- amend the claim in its entirety
- tender an oath, or accept, refer back or refuse one
- appoint a substitute
- lift an attachment
- petition for the client's bankruptcy, or make an arbitration agreement
- propose or consent to a composition, or to the restructuring of a company by agreement
- resort to alternative dispute resolution
- discontinue the claim or an appeal
- admit the claim
- bring and conduct proceedings concerning rights strictly personal to the client
The authorities most often forgotten in practice: applying to a mediator, settling and amending. A power of attorney lacking them causes real difficulty in the mediation process.
Special authority is also required for the sale of immovable property, incorporating a company, and certain administrative acts.
How the Fee Is Fixed
Articles 163 ff. of the Advocacy Act (no. 1136) govern the fee agreement.
Freedom of contract: the agreement is made freely, but the Act imposes limits.
The floor: under Article 164 the fee cannot be below the amount set in the minimum fee scale, which the Union of Turkish Bar Associations publishes each year.
The ceiling: where the subject matter has a value other than money the fee is fixed freely, but it cannot exceed twenty-five per cent of the value of the claim.
The prohibition: under the same article it cannot be agreed that part of the subject matter itself will belong to the lawyer — so giving a share of the property as a fee is void.
What the agreement should contain: the definition of the work, the fee and payment timetable, who bears the expenses, whether appeals are included, and what happens to the fee if the lawyer is dismissed or withdraws.
Expenses — court fees, the advance on costs, expert fees, service — are as a rule separate from the fee and borne by the client. Say so expressly in the agreement.
The Costs Award Belongs to the Lawyer
This is the most misunderstood point.
At the end of a case the court awards a lawyer's fee in favour of the successful party, recoverable from the other side.
The final paragraph of Article 164: the fee awarded against the other side at the end of the case, on the basis of the scale, belongs to the lawyer. It cannot be set off against the client's debts, and it cannot be attached.
So the sum recovered from the other side belongs to the lawyer, not the client, and is not deducted from the fee the client pays — unless the agreement says otherwise.
Settle this when the agreement is made; it is the commonest misunderstanding in practice.
And where the case is lost, the fee awarded in favour of the other side is the client's liability and must be paid. Take it into account when assessing the risk of litigation.
| The lawyer's fee | The costs award | |
|---|---|---|
| Who pays | The client | The losing party |
| Who receives it | The lawyer | The winning party's lawyer |
| How it is fixed | By agreement | By the court, on the minimum scale |
| Floor | The minimum fee scale | — |
| Ceiling | 25% of the value of the claim, in proportionate agreements | — |
| Where the claim partly succeeds | As agreed | Apportioned between success and failure |
The costs award cannot be set off against the client's debts and cannot be attached.
The authorities most often missing are mediation, settlement and amendment — and each omission means a new power of attorney and a delay. Settle in the agreement, too, who receives the costs award: by law it belongs to the lawyer unless you agree otherwise.
Frequently Asked Questions
Where is a power of attorney executed?
Before a notary, or at a Turkish consulate if you are abroad. A divorce power of attorney is executed with a photograph.
Which authorities are most often missed?
Applying to a mediator, settling and amending the claim. Without them the representative simply cannot take those steps.
Can a fee be agreed below the scale?
No. The minimum fee scale is a floor, and in proportionate agreements the fee cannot exceed twenty-five per cent of the value of the claim.
Who gets the costs awarded against the other side?
The winning party's lawyer, by law — not the client — unless the fee agreement provides otherwise.
What if I lose?
The fee awarded in favour of the other side is your liability and must be paid. Factor it into the risk before suing.