Disclaimer: This article is first published in Mondaq on October 28th, 2019.
This article aims to provide clarification for one of the most asked questions about the Turkish litigation system: Official Attorney Fees. This particular fee often causes confusion, especially for non-Turkish rights-holders. This is a valid confusion, because when this fee is demanded from the rights-holder, the rights-holder usually have paid or determined a fee with their own attorney, hence the confusion. It is important to note that, the particular fee which is agreed with the client and their attorney is not at all relevant to the official attorney fee. Another important note before going forward with information about the attorney fees is that, within this article, official attorney fees will be examined in terms of IP litigation. It is important to note that since different fields of law has different regulations for official attorney fee.
Official attorney fees are pre-determined monetary payments awarded to the prevailing party's attorney in Turkish court actions.
Official attorney fee is paid by the losing party to the prevailing party's attorney. Payment of this fee directly to the prevailing party is forbidden by law and will not constitute payment of the debt.
Official attorney fees also constitute the minimum amount the attorney can charge from his/her client, for the given type of dispute.
Official attorney fees are regulated and updated yearly in Minimum Attorneyship Fee Tariff (See Footnote #1) (Turkish: Avukatlık Asgari Ücret Tarifesi).
Minimum Attorneyship Fee Tariff is issued by Union of Turkish Bar Association (Turkish: Türk Barolar Birliği) each year. The Tariff is usually issued in late December or early January (See Footnote #2).
The Tariff also includes a set of rules about specifics of the attorney fees. Enclosed to Tariff is the fee list for each specific law field. Official attorney fees for each type of court are specified in the list. For example, this year's (2019) minimum attorney fee for disputes before the IP Courts (Turkish: Fikri ve Sınaî Haklar Mahkemeleri) is 3931 Turkish Liras (Equivalent of 604,43 Euros as of October 22nd of 2019). The screenshot of the current Tariff's part about the IP courts is shown below:
In some cases, the court decision will be partial which means only some claims of the plaintiff will be accepted by the court, while the remaining claims will be refused. When that happens, the court will usually order both parties to pay the official attorney fee to each other's attorneys. An example of that is shown below for the readers' convenience:
For most commercial cases (including IP disputes), official attorney fee can be requested upon the finalization of a court decision. Finalization of a court decision happens when the parties do not appeal the decision in due time or when the parties exhaust the legal remedies.
The prevailing party's attorney may choose to contact the losing party or losing party's attorney via mail, e-mail, or telephone to request the official attorney fee. However, doing so is not a legal necessity. The attorney can directly request the official attorney fee via debt collection in which the attorney files a debt enforcement application, starting the enforcement proceedings. A separate official attorney fee arises since enforcement proceedings is a separate legal dispute. Official attorney fees for enforcement proceedings is usually estimated by a percentage of the requested amount (12% for amounts below 35.000 Turkish Liras, as of 2019 with the minimum fee being 450 Turkish Liras).
Although not often, sometimes attorney of the prevailing party may request to collect the official attorney fee when the court decision is not finalized, in a case where finalization of the decision is a prerequisite to request the official attorney fee. If the official attorney fee is requested via enforcement proceedings, filing a complaint to the competent Court of Enforcement can be recommended to resolve the issue and end the enforcement proceedings.
Accounting for potential requests of official attorney fees could be helpful while estimating your overseas legal budget. However, the most important thing to bear in mind with regards to official attorney fee request is immediately consulting with your Turkish attorney. Each case is unique and can have unique aspects which can affect the specifics of the official attorney fee.
Footnotes
1- 2019 edition of the Tariff (in Turkish): https://www.barobirlik.org.tr/dosyalar/belgeler/AvUcretTarifesi/tbb2019.pdf
2- Prior editions of the Tariff (in Turkish): https://www.barobirlik.org.tr/Haberler/avukatlik-asgari-ucret-tarifeleri-5435