What ıs the Legal Basıs for the Oblıgation to Have an Attorney?

The practice of having an attorney in joint-stock companies has become final after 2011 with the decision of the Constitutional Court. Article 35/3 of the Attorneyship Law No. 1136 regulates the obligation of companies to have an attorney.

(The decision of the Constitutional Court) “It clarifies the justification of Article 35/3 of Law No. 1136 and states that joint-stock companies with large capital contain important disputes. These disputes arise between shareholders, employees and creditors and society. It is therefore important that such companies are operated by applicable laws and that a fair balance is struck between these competing interests. As a result, the application of Article 35/3 of the Law on Joint Stock Companies No. 1136 was not found to be contrary to the Constitution.” So, when we say having an attorney, what kind of attorney you should work with? Here, as far as we understand from the law article, we can say that companies have to have a contracted attorney. In other words, these companies should establish a regular proxy relationship by making contract with an attorney.

So, whıch companıes are oblıged to have an attorney wıthın the scope of Artıcle 35/3 of the Attorneyshıp Law No. 1136?

Joint-stock companies with a capital of 250 thousand TRY or more have to work with an attorney on a contractual basis. This attorney can work insured within the company or can work under contract outside the company. After the registration of the joint-stock company establishment, responsibility begins.

As it is known, there will also be joint-stock companies whose capital increases later. In this case, after the registration of the minutes of the general assembly resolution of the company regarding the capital increase in the commercial register, the obligation to have an attorney will arise.

I would like to point out that limited liability companies do not have to have an attorney. However, applying to an attorney who is an expert in the business for important legal advice and follow-up work will prevent legal mistakes that may occur afterwards.

What Is the Sanctıon for Vıolatıng the Oblıgatıon to Have an Attorney?

Joint-stock companies (that do not have a contracted attorney) ought to pay an administrative fine of twice the applicable gross minimum wage for each month (in which they do not have an attorney) from the beginning of the obligation to have an attorney. This fine is charged by the Chief Prosecutor’s Office. In other words, for 2022, an administrative fine will be around 10,008.00 TRY just for one month of violated liability.

Summary

In short, in Turkish Law, there is an obligation to have an attorneyfor Joint Stock Companies with a capital of more than 250 thousand TRY. This obligation is a commitment and there are no exceptions. For this reason, companies have to pay high fines in case of violation. The obligation to have an attorney, which is an important detail, is an issue that should be followed by the owners of the company.