Joint stock companies and cooperatives are obliged to have a contracted lawyer, even if there is no litigation, enforcement proceedings or attorneyship work. Do not be surprised, this is nothing new, such a requirement has been in place since February 8, 2008 (Law No. 1136, Art.35).
published in the Official Gazette last week, New Attorneyship Fee Schedule and fees to be paid to lawyers with compulsory contracts in joint stock companies from 4.255 TL to 8.300 TL per month, in cooperatives if increased from 2,840 TL to 5,500 TL per month (Official Gazette dated 3 September 2022 and numbered 31942).
Who must have a contract lawyer?
The obligation to have a contracted lawyer is included in the Attorneyship Law. According to the third paragraph of Article 35 of the Attorneyship Law;
– Joint stock companies with a basic capital of 250 thousand TL or more,
– Building cooperatives with 100 or more members,
They must have a contract lawyer.
Joint stock companies and building cooperatives that fall below these criteria are not required to have a contracted lawyer.
What exactly is meant by the obligation to have a contracted lawyer?
Obligation to have a lawyer essentially means to agree with a lawyer on a contractual basis. This can be achieved by having a contracted lawyer with whom a lawyer’s contract is drawn up on a monthly consultancy basis, or employing a lawyer in that company as an insured under an employment contract. In both cases, the requirement to have a lawyer is considered fulfilled.
What does the 250 thousand TL figure mean?
According to the third paragraph of Article 35 of the Attorneyship Law, joint stock companies with five times or more of the basic capital stipulated in Article 332 of the Turkish Commercial Code must have a contracted attorney.
5 times the basic capital stated in the law means 250 thousand TL, which is 5 times the minimum capital of 50 thousand TL stipulated in article 332 of the Turkish Commercial Code. Joint stock companies that raise their capital to 250 thousand TL or more through capital increase are also required to have a lawyer.
There are penalties for companies and cooperatives that do not have a lawyer!
“How many lira fines?” Let’s explain for those who ask;
Joint stock companies and building cooperatives that violate the obligation to have a contracted lawyer are penalized by the Public Prosecutor with an administrative fine equal to two months’ gross amount of the minimum wage for each month that they do not appoint a lawyer. (Law No. 1136, Art.35). In other words, joint-stock companies and cooperatives that are required to have a contracted lawyer but do not comply are subject to administrative fines every month. In this context, many companies have been fined.
Monthly penalty for not having a lawyer for 2022;
– Monthly for the first six months (January – June) 10,008 TL (5.004 TL x 2),
– Monthly for the second six-month period (July – December) 12,942 TL (6,471 TL x 2).
– In total, if the contract lawyer has not been present throughout the year 137,700 TL.
How are non-compliance identified?
Joint stock companies and building cooperatives, which are obliged to have a contracted lawyer in the provinces where they are located, by the Bar Associations “Attorney’s Agreement” A letter is sent for them to submit. If the contract and supporting documents are not submitted based on this article, a criminal complaint is filed against the company and the cooperative by the Offices of the Bar Association to the Chief Public Prosecutor’s Office of that province. In the investigation to be carried out by the Office of the Chief Public Prosecutor, the contract, the lawyer’s self-employment receipt, and the payment receipt for the receipts must be submitted. It is not enough to just make a lawyer’s contract.
Is there such a requirement for limited companies?
The regulation in the Attorneyship Law imposes obligations only on joint stock companies and cooperatives. Therefore, limited companies or ordinary companies operating in Turkey are not required to have a lawyer. The fact that it is not compulsory does not prevent having a lawyer. In our opinion, any loss of rights etc. In order not to encounter situations, it is beneficial to get legal support from a lawyer on a continuous or as needed basis.
Are administrators responsible for penalties?
The obligation to appoint a lawyer concerns tens of thousands of joint stock companies and cooperatives. This obligation may not be known to many because it is included in the Attorneyship Law, not the Cooperatives Law or the Turkish Commercial Code. But ignorance of the law is no excuse! It’s worth paying attention to.
If this requirement is not complied with, according to Article 35 of the Attorneyship Law. “two months gross amount of minimum wage” Administrative fine up to the amount is imposed on the related joint stock company or cooperative. There is not much problem in these companies, the fines paid are generally not reflected to the managers. However, in Article 62 of the Cooperatives Law; Since it is stated that the members of the board of directors and the cooperative’s officers will be responsible for the damages caused by their own faults, it is possible to reflect the penalty paid in the cooperatives to the managers by filing a lawsuit.
The business world wants to increase the amount of 250 thousand TL!
The business world; Since almost all of the joint stock companies have not been updated in time since 2012, the said amount of 250 thousand TL falls within the scope of the obligation to have a contracted lawyer, and this practice is applied to joint stock companies that do not have litigation, enforcement proceedings or attorneyship work. finance It wants the said amount to be increased according to the changing conditions of the day, and the said amount to be at least 1 million TL.
Unfortunately, most of the calls and messages received in the last month are about this issue!
So, can this amount be increased?
Yes, the amount can be increased in two ways:
First, the said amount can be increased by the President’s Decision.
How Does? In paragraph 1 of Article 332 of the Turkish Commercial Code, The initial capital of non-public joint stock companies that have accepted the registered capital system, which indicates the capital fully committed in the articles of association, is fifty thousand Turkish Liras, and that the ceiling of authority granted to the board of directors in increasing the capital cannot be less than one hundred thousand Turkish Liras, and this minimum capital amount can be increased by the President. has been bound. With a Presidential Decree to be issued, the minimum capital amount can be increased. For example, if the minimum capital amount is increased to 200 thousand TL, the amount related to the obligation to have a lawyer becomes 1 million TL.
Secondly, If the minimum capital amount is not desired to be increased, this time, the third paragraph of Article 35 of the Attorneyship Law. “five times” with a legal amendment to be made “20 times” can be changed to .
Say what?