Withdrawal of an Attorney from Representation

Withdrawal is an attorney’s voluntary decision to cease acting in, or defending, a particular matter. Under Article 41 of the Attorneyship Act (Law No. 1136), withdrawal means the attorney’s resignation from representing their client. Under the same Act, the period of withdrawal continues for fifteen days from service of the notice on the client.

The position differs for an attorney assigned to a matter by the legal aid office or by the president of the bar association. In that case the attorney may not decline to perform the duty in the absence of force majeure or a legitimate excuse.

No formal requirement for the validity of withdrawal is laid down in the Act. Giving notice in writing is nonetheless of considerable importance, so that the client is informed, the attorney is released from responsibility, and both matters can be proved.

What does withdrawal mean?

Withdrawal is the attorney’s voluntary termination of their duty, by filing a notice of withdrawal, in any matter or case they have been conducting. The attorney will no longer conduct the client’s matters. As set out above, the attorney’s duty continues for fifteen days after withdrawal. In practice withdrawal and resignation are similar concepts, with minor differences between them. For the attorney’s responsibility to end after the notice is filed, service of that notice on the client is essential.

How does the process work?

Withdrawal may take place by the attorney filing a written notice of withdrawal; by declaring withdrawal during a hearing and having that recorded in the hearing minutes; or by serving a formal notice through a notary. The court then serves notice of the withdrawal on the client.

After that notice reaches the client, the attorney’s duty continues for fifteen days even though withdrawal has taken place. The attorney remains responsible throughout that period for all matters falling due within it, such as periods for objection, for application, or for submitting evidence. Once the fifteen days have elapsed, the attorney no longer bears responsibility towards the client.

Conditions for withdrawal

Under the Attorneyship Act, it is sufficient for the attorney to file a notice of withdrawal where they consider it necessary, or for any other reason. Grounds may include an inability to communicate with the client, the client’s failure to provide evidence, or the client’s failure to pay the costs required for the proceedings.

The attorney is not obliged to set out the reasons in detail. The Court of Cassation has held that it is sufficient for an attorney to state in the notice that they are withdrawing as they consider it necessary, and that a detailed explanation is not required.

Where the attorney withdraws for good cause, under the retainer agreement between attorney and client they become entitled to the fee as though the case had been completed. Where the attorney withdraws voluntarily without good cause, they are entitled only to a fee reflecting the work and effort performed up to the time of withdrawal.

An attorney appointed by the legal aid office or designated by the president of the bar association, however, must have an unavoidable reason or a legitimate excuse in order to withdraw. In the absence of those conditions, the attorney is obliged to perform the duty. Once the attorney has requested withdrawal by setting out the unavoidable reason or legitimate excuse, the assessment of that reason lies with the authority that made the appointment.

For these reasons, withdrawal should be considered carefully, so that the client suffers no loss of rights, no liability arises for the attorney, and the parties avoid disputes over fees.

Withdrawal and resignation compared

Withdrawal and resignation are essentially treated as the same thing. The principal difference is that the legal basis for withdrawal is Article 41 of the Attorneyship Act, whereas the legal basis for resignation is Articles 81 and 82 of the Code of Civil Procedure.

Article 41 of the Attorneyship Act imposes no formal requirement on withdrawal, although giving notice in writing is of course important in proving service on the client. Under that provision the attorney also bears a fifteen-day period of responsibility running from service on the client.

For resignation, Articles 81 and 82 of the Code of Civil Procedure prescribe formal requirements for it to take effect as regards the court and the person represented. The declaration of resignation must be notified by petition or recorded in the minutes and, where necessary, the service costs arising must be paid in advance. Under Article 82, the attorney’s responsibility continues for two weeks from service of the resignation on the client.

The notice served must warn the client that their attorney has resigned, that the resigning attorney’s duty of representation will continue for two weeks from service, and that if the client does not pursue the case or appoint another attorney, the provisions applicable in the absence of a party will be applied; the notice is sent together with the resignation petition. An attorney may alternatively submit a declaration of resignation as a formal notice through a notary and request that it be sent to the client. In that case too, resignation takes effect subject to the period of responsibility.

Case law

There is settled case law on withdrawal and resignation. The following decisions are summarised; their full texts are set out in the Turkish version of this article.

• Court of Cassation, 1st Civil Chamber, docket 2019/4003, decision 2021/7619 (7 December 2021). Where an attorney has withdrawn and that withdrawal has been served on the parties, service of the reasoned judgment on the withdrawing attorney is contrary to procedure and to law. The file was returned so that the judgment could be duly served on the party themselves and the statutory appeal period awaited.
• Court of Cassation, 12th Criminal Chamber, docket 2021/5050, decision 2021/8940 (1 December 2021). Where the notice of withdrawal was served on the wrong person — on the defendant rather than on the intervening party — the file was remitted so that the notice could be duly served on the correct party before the appeal was considered.
• Court of Cassation, 5th Civil Chamber, docket 2021/7049, decision 2021/12177 (27 October 2021). Before serving documents on the parties personally, the court must first establish whether the attorney has withdrawn or has been dismissed. Where neither has occurred, service must be effected on the attorney, since in matters conducted through an attorney service is made on the attorney under Article 11 of the Notification Act.
• Court of Cassation, 13th Civil Chamber, docket 2008/6283, decision 2008/11580 (13 October 2008). Resignation from representation is always possible and operates prospectively to end the relationship. Where resignation is not justified and the client suffers loss as a result, the attorney is liable for that loss. The Attorneyship Act imposes a stricter standard than the general law of agency: under Article 174/1, an attorney who abandons a matter without good cause may not claim a fee, and is liable to the client without any requirement to show loss. Such an attorney must also return fees received in advance and unused cost advances, unless otherwise agreed.
  On the facts, the attorney had resigned during the appeal stage on the ground that the fee had not been paid. Since a claim may in principle only be enforced once it has fallen due, and since the attorney’s fee falls due on completion of the work undertaken, resignation before the matters were concluded — that is, before the fee had fallen due — amounted to unjustified resignation, and no entitlement to a fee arose.

The information on this page is general in nature and does not constitute legal advice. Please contact our office for an assessment of your specific matter.

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