Amendments to the Union of Turkish Bar Associations' Regulation on the Prohibition of Advertising

The Regulation Amending the Union of Turkish Bar Associations' Regulation on the Prohibition of Advertising was published in the Official Gazette No. 326227 dated 09.08.2024. In this article, the amendments and new provisions made to the Union of Turkish Bar Associations' Regulation on the Prohibition of Advertising are addressed on a comparative basis, together with the individual provisions of each article.

ARTICLE 1: PURPOSE, SCOPE AND BASIS:

• The content of Article 1 of the Regulation has been rewritten so as to cover only the purpose of the Regulation.

ARTICLE 4: AN ATTORNEY'S PROFESSIONAL MEETINGS, AND THE STRUCTURE AND INDEPENDENCE OF OFFICES:

• Article 4 of the Regulation, which before the amendment was set out under the heading “Office”, has been changed by the new provision to “An Attorney's Professional Meetings, and the Structure and Independence of Offices”, and detailed prohibitions on meeting venues and law offices have been introduced. Under the new provision, the venue, setting and content of a meeting held with a client must be suited to the purpose of the meeting, befitting the dignity of the profession, and of a nature that does not violate the prohibition of advertising. Although the requirement under the old provision for an attorney to receive clients at his or her office appears to have been removed, the new provision also refers to Article 51 of the Attorneyship Law. Article 51 of the Attorneyship Law, under the heading “Places Unsuitable for Consultation”, provides: “Attorneys are prohibited from giving legal advice to clients and from accepting work in places other than their offices registered with the bar association, in the courtroom, or in any other part of the courthouse. The provision of the above paragraph shall not apply where the attorney is specially summoned.” Accordingly, the prohibition on holding meetings outside the office continues. However, the fact that home offices, virtual offices and similar offices are widespread under present-day conditions has been overlooked, and the necessary adaptation in this regard has not been made in detail. In addition, emphasis is placed on the requirement that meetings be held in a manner that does not violate the prohibition of advertising and on the confidentiality of meetings. The new provision also adds prohibitions stating that those within the scope of the said Regulation cannot have more than one office or open branches, and that attorneys, law offices and attorney partnerships operating in Türkiye and abroad cannot be named in a way that creates the impression of a permanent and continuing cooperation, such as “liaison office” or “solution partners”.

Article 5: Signboard:

• In the new provision on signboards in Article 5 of the Regulation, spelling errors have been corrected and all instances written as “unvan” (title) have been changed to “ünvan”.

A prohibition has been introduced in the amended third paragraph of Article 5 stating that more than one signboard cannot be used for one attorney at a law office. At the same time, taking into account that the use of registered electronic addresses has become widespread, permission has been granted for the KEP (Registered Electronic Mail) address to be added to the signboard as well. In addition, a time-limit provision has been made for the case of a change of address, and the amendments include giving 1 week for the removal of the signboard at the previous address in this case.

ARTICLE 6: PRINTED DOCUMENTS AND ELECTRONIC DOCUMENTS:

• Article 6 of the Regulation, which before the amendment was set out under the heading “Printed Documents”, has been brought into line with present-day technology, and by the new provision the heading has been changed to “Printed Documents and Electronic Documents”; in the said article, all of the wording previously set out as “Letterheads, business cards and other printed documents” has been changed to “Letterheads, business cards of every kind, other printed and electronic documents”. The phrase “academic title” in the article has also been narrowed by changing it to “academic title in the field of law”. For example, the use of descriptions such as doctor of history, doctor of sociology, medical doctor, or retired prosecutor or member of parliament, outside the field of law, is prohibited. Since only academic titles in the field of law may be used together with the title of attorney, “Professorship and Associate Professorship in the field of law” is listed among the occupations that may be combined with attorneyship in Article 12(1)(b) of the Attorneyship Law No. 1136, entitled “Occupations that may be combined with attorneyship”. Professorship and Associate Professorship titles obtained in fields other than law cannot be used together with the title of attorney. Furthermore, past and present positions in political parties cannot be stated. In addition, whereas the last paragraph of the relevant article read “Those within the scope of this Regulation may not use stamps in the form of a seal”, it has been changed to “Those within the scope of this Regulation may not use marks that are likely to be confused with official seals”, and the scope of the prohibition has thereby been widened.

ARTICLE 7: USE OF WRITTEN, AUDIO, VISUAL AND ONLINE MEANS OF COMMUNICATION

• Article 8 of the Regulation, entitled “Media Relations”, and Article 9, entitled “Internet”, have also been repealed. In place of these articles, Article 7, entitled “Use of Written, Audio, Visual and Online Means of Communication”, has been enacted.

• Whereas Article 7 of the old Regulation contained a provision entitled “Telephone Directory”, as that provision no longer has any field of use today, it has been amended, in accordance with present-day conditions, by a very comprehensive provision under the article heading “Use of Written, Audio, Visual and Online Means of Communication”.

Whereas the old provision stated that those within the scope of the Regulation could announce changes of address, the opening of offices, their return to the profession after a break exceeding six months, and their entry into and exit from an attorney partnership through newspapers and other written press, in a manner not amounting to advertising, the new provision, in line with technological developments, provides the possibility of making such announcements through written, audio and visual means of communication and in online media.

• Subparagraphs (b), (c), (d) and (f) of Article 7 of the Regulation introduce comprehensive restrictions on attorneys' use of social media.

Subparagraph (b) of Article 7 of the Regulation, placing emphasis on professional identity and private life, provides that attorneys cannot make posts of an advertising nature about their lives, earnings or professional activities in a manner that is associated with their professional identity, and that where the title of attorney is used in written, audio, visual and online means of communication, they must refrain, in their posts concerning their private lives, from conduct that damages the reputation of the legal profession.

The new provision in subparagraph (c) of Article 7 of the Regulation reads: “In written, audio, visual and online means of communication, they may not bring to the fore, in a manner that may constitute advertising, past or current cases or the legal matter on which they are working. They may not make statements or posts acting as a spokesperson for the parties. Where necessary, they may provide information and make statements, provided that they remain within the legal dimensions of past or current case files. However, with the aim of obtaining work, they may not publish or make written or visual posts by sharing information of a general and abstract content that is accessible to everyone.” The prohibitions in the provisions of the old article have been widened, and particular attention has been drawn to social media posts such as those on Instagram, YouTube and X. Nevertheless, we are of the opinion that the prohibitions introduced by the new provision are not fully and clearly defined, and that some of the provisions are open to interpretation.

For example, will directly sharing a current Court of Cassation (Yargıtay) decision on social media, or commenting on a shared decision, be characterised as a violation of the advertising prohibition? Likewise, will sharing legal information on social media, and shooting a video based on that information and sharing it on social media accounts, be characterised as a violation of the advertising prohibition, or will it be regarded as falling outside its scope? None of these points is known with certainty; we are of the opinion, however, that the application of the Regulation will settle on the basis of the penalties imposed in the future for violations of the advertising prohibition.

Subparagraph (ç) of Article 7 of the Regulation reads: “In written, audio and visual means of communication and in online media, in broadcasts in which they take part or of which they are a part, in whatever capacity, they are obliged to refrain from any conduct that may be regarded as advertising and from any statement or post that damages the reputation of the legal profession.” The relevant provision is framed with regard to programmes and broadcasts on television and the internet.

Subparagraph (d) of Article 7 of the Regulation reads: “They may not use a domain name whose content is aimed solely at gaining renown, putting themselves ahead of their colleagues, or obtaining work through advertising. The domain name may not be contrary to the dignity of the legal profession. They may open a website limited to the following information: the name and surname of the owner or owners of the website and, if any, academic title in the field of law and photograph; the name and surname of the other attorneys working at the office and, if any, their academic title in the field of law; the registered title if it is an attorney partnership, or the office title if it is a law office; the Union of Turkish Bar Associations and bar registration numbers; the dates they started the profession; the university they graduated from; the foreign languages they know; the office address where the professional activity is carried out; telephone and fax numbers; and e-mail and registered e-mail addresses. They may not share information on their clients, or on the persons and institutions to whom they provide consultancy, on the website under “references” or any other name. On websites they may provide information on the fields in which the office operates, without implying specialisation.” The said provision contains abstract expressions such as “solely at gaining renown” and “without implying specialisation”, and their scope has not been determined in a clear, precise and limited manner. In addition, the new provision introduces a prohibition on attorneys sharing information on their clients or on the persons or institutions to which they provide consultancy.

Subparagraph (e) of Article 7 of the Regulation reads: “With the aim of obtaining work and in a manner that gives rise to competition with their colleagues, in online media and in the design of websites or in the codes that can be detected by search engines, they may not use directing codes, keywords, subdomains or page addresses aimed at bringing their professional activities to the fore and appearing at the top of search engine results, or apply similar methods. They may not carry out any acts or transactions in online media that would bring to the fore content that they themselves have prepared or had prepared, or that has been prepared about them, whether for payment or free of charge. They may not use, or allow the use of, internet shortcuts that would direct internet users to their own website or from their own website to another site; they may not place or accept advertisements in online media.”

Subparagraph (b) of Article 9 of the old Regulation, which has been repealed, provided: “Provided that it is not aimed at obtaining work and does not lead to unfair competition with colleagues, when registering their websites with search engines they may not use as keywords any word or promotional phrase other than 'name and surname', 'title of the attorney partnership', 'title of the law office', 'the city in which they are located and the bar association with which they are registered', and 'attorney, law, lawyer, justice, defence, prosecution, equality, right'.” In this repealed article, all of the words listed as examples of keywords have been removed, and the new provision introduces in their place the concepts of directing code, keyword, subdomain and page address. Thus, compared with the old provision, a novelty has been introduced regarding internet use.

The following provision has been added as subparagraph (f) of Article 7 of the Regulation: “Provided that it is not aimed at obtaining work and does not give rise to competition with their colleagues, they may announce information on their candidacies in bar association or Union of Turkish Bar Associations organ and presidential elections and in general or local elections, through written, audio and visual means of communication and online media, beginning at the earliest 2 months before the election date and ending within 10 days following the election. These announcements shall be suited to the purpose and befitting the dignity of the profession.”

FORMER ARTICLE 10 REPEALED:

• The provision of Article 10 of the old Regulation, entitled “Cooperation”, has been repealed. However, the heading of this provision has been changed to “Structure and Independence of Offices” and the provision has been re-enacted in Article 4 of the Regulation as amended by the new provision. Article 4 of the amended Regulation has been set out in detail above.

ARTICLE 11: OBLIGATIONS:

• Article 11 of the Regulation, entitled “Obligations”, has continued to bear the same heading under the new provision, and the expression “putting themselves ahead of their colleagues” has been added to its content. In addition, the scope of the provision has been widened by rewording the expression “...any initiative that may be regarded as advertising in order to obtain work...” as “any initiative aimed at obtaining work through advertising”.

ARTICLE 12: VIOLATION OF THE PROVISIONS OF THE REGULATION

• Article 12 of the Regulation sets out the consequences of acting in violation of the provisions of the Regulation. Under the old provision, it was stated and applied that where a violation of the provisions of this Regulation was established, the bar associations would first send a warning letter to the person concerned and give 15 days to remedy the violation, failing which the bar association would open an investigation ex officio. In the new provision, the warning letter and the 15-day period condition have been removed from practice altogether, and a more severe change has been made whereby the bar association will open an investigation ex officio directly. The expression “The fact that a disciplinary investigation has been opened shall be notified to the person concerned by a letter that also includes a request for a defence.” has also been added to the relevant article. Accordingly, with the new amendment, where a violation of the advertising prohibition is established under the provisions of the Regulation, the previously existing sending of a warning letter and the granting of a period for remedying the violation will no longer apply; an investigation will be opened ex officio and a letter including a request for a defence will be notified to the person concerned.

In addition, the following provisions have been added by the amendment to Article 12 of the Regulation. “The notification shall state that, if it is concluded as a result of the investigation that the advertising prohibition has been violated, the Bar Association Board may decide to open a prosecution; that a sanction may be imposed by the Bar Disciplinary Board at the end of the prosecution on account of the violation of the advertising prohibition; and that, if the violation of the advertising prohibition is remedied immediately following the notification, this may be accepted as a ground for discretionary reduction at the end of the prosecution.

Those within the scope of this Regulation are obliged to end the violation immediately as from the notification of the final Disciplinary Board decision establishing that the advertising prohibition has been violated in respect of them. If the violation is not ended immediately, a new investigation shall be opened and the provisions on repeat offences shall apply. Investigations and prosecutions within the scope of this Regulation shall be decided as a matter of priority by the Executive and Disciplinary Boards of the Bar Associations and of the Union of Turkish Bar Associations.” Accordingly, under the relevant provision added by the new regulation, failing to end an act that violates the advertising prohibition may be treated as a repeat offence.

PROVISIONAL ARTICLE 3: TRANSITIONAL PROVISION:

“Those within the scope of this Regulation shall fulfil their obligations under the provisions made in Articles 5 and 6 and in subparagraph (d) of Article 7 of the Regulation within a maximum of 3 months from the date of publication of this article.” The date of publication is 09.08.2024.

ARTICLE 14: ENTRY INTO FORCE

“This Regulation shall enter into force on the date of its publication.” The amendments to the Regulation were published in the Official Gazette No. 326227 on 09.08.2024 and entered into force on 09.08.2024.

Although the relevant Regulation sets out which attitudes and conduct may be regarded as advertising and may constitute a violation of the provisions of the articles within its scope, many of the expressions remain general and open to interpretation, and the determination and assessment must be made according to the concrete case. Moreover, whereas it would have been more appropriate to make the amendments with regard to technological conditions, further restrictions have been introduced. We are of the opinion that this may give rise to problems in practice.