Hakan Yazıcı

Lawyer hyazici@yazicilegal.com Twitter: av_hakanyazici

The amendment is likely to put pressure on lawyers similar to the pressure imposed on prosecutors and judges with the changes by the 2010 referendum. Photo shows lawyers protesting in front of Ankara Justice House. (Photo: Ankara Bar)

“The Amendment to the Lawyers Act and Some Other Laws” recently added to the already busy agenda of Turkey. Although the amendment is getting quite a lot of media coverage, most of the discussions I was able to follow were on a political level and did not get into the actual amendments and their consequences as much. Unfortunately we are familiar with this type and level of discussion. However, there is one detail introduced with the amendment but not discussed much in the media. Still, it may have very important consequences, affecting not only the lawyers but also those who will retain them in the future. That is why the amendment needs to be discussed bravely and in more detail and its consequences be understood by everyone.

1- Changes to pay attention in the amendment, their consequences and purposes

It will be possible to set up multiple bars each having more than 2,000 lawyers in cities where more than 5,000 lawyers are active. Based on Turkish Bar Associations (TBB) figures as of Dec. 12, 2019, there are only three bars in Turkey with more than 5,000 members: Istanbul (46,052), Ankara (17,598) and Izmir (9,612).

The candidates supported by the current ruling party did not win any elections for Istanbul, Ankara and Izmir bars. Looking at the difference between their votes and those candidates who got elected, it looks like they will not win in the future either. This bothers the ruling party. I am not sure why it does by the way. The budget for legal aid and appointments under the Code of Criminal Procedure, or the CMK, (money paid by the bar to lawyers appointed by the bar to those who cannot afford it in civil and criminal cases) of these three bars is not that big.  

A calculation based on 2019 budgets for these three bars affected by the amendment and the potential bars that might be established in these cities shows that the funds which will be available to those bars supported by the ruling party will be at around 10 million Turkish Liras (roughly $ 1.5 million) at most.  Considering the monetary gains resulting from previous legal changes, which were also hard to make sense, this is a quite small carrot.

I do not believe the motivation behind the amendment is to stop the political influence by the bars closer the opposing parties. I also do not believe bars managed to put any meaningful pressure on the ruling parties in the past anyways.

Amendment seeks putting pressure lawyers

The main reason for the amendment is to put pressure on the lawyers through disciplinary procedures. Turkish bars are members of the TBB and the TBB general assembly is where you appeal disciplinary rulings of the bars for lawyers registered with them (and also for the decisions that there is no need for a disciplinary investigation). The decisions of the TBB general assembly for heavier penalties for lawyers may further be appealed at the High Administrative Court, but for others, the ruling of the TBB general assembly is final. In any case, being dragged into an unjust procedure as such will be sufficient deterrence, the fact that some of those decisions may be overturned at the High Administrative Court will not change the reality of the pressure which will be imposed.
Currently, each bar sends representatives to the TBB general assembly based on the number of lawyers registered with them. Each bar sends two representatives automatically in addition to one representative for each 300 lawyer registered with that bar. As you can see, the current system is quite democratic. İstanbul, Ankara and İzmir bars stand for around half of the lawyers in Turkey lawyers and send 46 percent of the representatives to the TBB general assembly. This means that unless the candidates supported by the ruling party wins bar elections in these three big cities, they will not be able to control the TBB general assembly and it will not be possible to put pressure on lawyers without controlling it. If the amendment is enacted in its current form, although it is not possible to be certain without knowing the number of bars that will be established in each of these three big city, the total representation of Istanbul, Ankara and Izmir is expected to fall down to less than 10 percent. As a result, it will be possible to insert pressure on lawyers not close to the ruling party, who will have already been polarized and blacklisted.

2) Baseless arguments in favor of the amendment

The official reason of the amendment claims to fix problems of the lawyers, yet there is not a single section in the amendment which talks about a specific problem or how to fix it.

Excuses about political involment are invalid

The supporters of the amendment claim that the lawyers are not happy with the services by their bars and show the participation rates of the lawyers to the elections of their bars as an indication thereof. The participation to the most recent elections for the Istanbul Bar was around 65 percent. This is not much different from the participation rates at the bars with less than 5,000 lawyers or bars of foreign cities. This means that it is not a meaningful indicator of whether lawyers are happy with the services they get from their bars.
In addition, there doesn’t seem to be a meaningful difference between crowded and non-crowded bars in terms of responding to legal aid or CMK lawyer requests. So, the services are not poorer in crowded bars. If there is a discontent, it is the same in crowded and non-crowded bars.
Supporters of the amendment claim that the big bars act together with and even as a part of the opposing parties. They probably have not made the effort to check, but when we look at all bar presidents elected in Turkey since the ruling party came into power, 49 have been members of the ruling AKP or candidates/actual parliament members from the AKP. The figure stands at 45 for the main opposition CHP, seven for the MHP, five for the HDP, and 199 presidents had no such political affiliation. This means that the majority of bar presidents do not have a political affiliation and among those who have, the AKP is the leader. This also means that this argument is also baseless. Also, it is among the duties of the bar to protect lawyers’ rights and the rule of law. I cannot remember any action of the ruling party in favor of the lawyers’ rights or rule of law; we have been going backwards. So it is only natural that the positions of the bars and opposing parties (whose main purpose is to oppose the ruling party) coincided in this respect.

No, this is not the US system

There is also the “this [multiple bar] system works in other countries, such as the U.S.” argument. I wonder people making this argument have ever bothered to check what the actual the system in the U.S. is. Firstly, the U.S. has a federal system and bars are organized at state level, not federal. So any comparison should be done with the New York or California bars, as an example. As a New York admitted lawyer who has practiced law in New York for two years, there is only one bar that lawyers must register to practice in New York, and any other state I know of. The name of that bar is New York Bar. There is however also the New York City Bar Association in New York, which is voluntary to become a member. It is an association by law, not different than many associations established by lawyers in Turkey, which are voluntary to become a member. I wonder if the supporters of the amendment got confused because such associations contain the word “bar” in their names.
I also checked the system in many other countries but could not find an example similar to the one being introduced by the amendment.

3) Problems that will arise in practice

There will be differences in the practices of different bars in the same city.

Intern lawyers will have to consider the political inclination of the lawyers they will intern with.

Amendment to bring politicization

Lawyers will start acting as politicians, which will negatively affect the profession and its freedom, a profession that does not even allow making any advertisement to protect its freedom.
Since the lawyers will no longer be represented democratically in TBB, decisions objected by the majority of the lawyers will be taken and this will negatively impact the profession.
Some lawyers will be pickier in choosing clients, particularly opposing parties because they will be concerned about potential disciplinary consequences. This means it will be harder to retain the lawyer you want.
As a result, we are faced with a proposal which will negatively affect our legal system even further, the main purpose of which is to establish pressure on lawyers similar to the pressure established on prosecutors and judges with the changes made to the formation of HYSK (High Council of Judges and Prosecutors -Now HSK) by the 2010 referendum. I hope that the members of the parliament, at least those who are lawyers, take these into consideration when voting to enact the amendment.