Annulment of Disciplinary Provisions of the Attorneyship Law on Grounds of Unconstitutionality

The Constitutional Court's decision numbered 2025/47 annulled the disciplinary provisions in the Attorneyship Law, finding them vague and lacking criteria; this annulment created a normative void for legal practitioners and necessitated the enactment of new regulations.

Attorney Dr. Tolga Ersoy | 27/05/2025

The Constitutional Court annulled Articles 134 and 135 of the Attorneyship Law No. 1136, finding them contrary to Article 2 of the Constitution. The legal and professional ramifications of this decision, particularly concerning Attorneyship Disciplinary Law, are highly significant. For the articles in question constitute fundamental provisions regulating both the substantive grounds and types of disciplinary penalties. The repeal of these provisions not only creates a normative void but also renders the enforceability of disciplinary sanctions contentious within the framework of the rule of law, certainty, and foreseeability principles.

The most fundamental ground for annulment in the Constitutional Court's decision numbered 2025/47 was that the acts and conduct forming the basis for disciplinary penalties in Articles 134 and 135 of the Attorneyship Law No. 1136 were not regulated in a clear, foreseeable, and specific manner. The Court found that the expression of circumstances warranting disciplinary penalties through general and abstract concepts violated the principles of the rule of law and legal certainty enshrined in Article 2 of the Constitution, as it prevented individuals from knowing in advance which actions would lead to which legal consequences. In this context, the imposition of penalties based on vague concepts such as "conduct contrary to the honour of the legal profession", "failure to comply with professional order", or "conduct contrary to integrity" prevents the establishment of an objective link between disciplinary actions and sanctions, thereby enabling arbitrary practices.

The Constitutional Court deemed the unrestricted discretionary power granted to disciplinary boards and the lack of clear legislative specification regarding which act warrants which penalty to be contrary to the principles of proportionality and certainty. Although the types of disciplinary penalties that can be imposed under Article 135 are enumerated, no normative link has been established as to which actions they should be associated with. Consequently, disciplinary boards can impose different and disproportionate sanctions for similar acts, which undermines the sense of justice and the reliability of professional oversight. The Court concluded that this structure does not comply with the principle of the rule of law stipulated in Article 2 of the Constitution and the principle of "legality of crimes and penalties" enshrined in Article 38.

The Constitutional Court, continuing the approach adopted in its previous jurisprudence, emphasized the same constitutional infirmities not only in the context of the Attorneyship Law but also in similar disciplinary regimes concerning other professionals, thereby establishing a systematic evaluation framework. This decision demonstrated that regulations concerning the disciplinary liability of legal practitioners must clearly and foreseeably define not only the types of penalties but also the acts to which these penalties will apply. In this respect, the decision is not merely an annulment of specific norms; it constitutes a call for normative reform requiring the reconstruction of the general framework of disciplinary law.

In its decision, the Constitutional Court primarily cited the failure to establish a sufficient normative link between disciplinary offenses and penalties, and the granting of broad discretionary power to disciplinary boards, which is susceptible to arbitrariness, as the fundamental grounds. Considering that the legal profession is a public service and its members are endowed with ethical obligations, it is self-evident how crucial a function disciplinary law performs in this regard. For instance, if an attorney working within a law firm violates their duty of loyalty to a client, the lack of clear regulation specifying which act warrants which disciplinary penalty can undermine both the protection of the attorney's rights and the public's sense of justice.

In this context, it is imperative to ask: Even if the types of disciplinary penalties are clearly specified, does the lack of detailed statutory regulation of the acts and circumstances warranting these penalties constitute a legislative gap? The answer is unequivocally clear: Yes, while this situation may not technically constitute a "legislative gap", it creates a "normative void" in practice where a clear link between act and penalty cannot be established. This is because the vagueness of the acts specified in the law and the absence of criteria for determining penalties based on specific acts allow disciplinary boards to engage in arbitrary and inconsistent practices. Thus, the principle of legality, which forms the foundation of disciplinary law, is undermined. It is also noteworthy that this situation persists in legislation despite having been repeatedly identified by court decisions.

The Constitutional Court's decision, by referencing similar annulment decisions concerning the disciplinary regulations of other professional organizations, reveals that this issue is not isolated but rather a structural problem observed across Turkish professional law. This situation underscores the need for new and clear provisions, both for the protection of legal practitioners' rights and for the fair establishment of professional standards. An attorney conducting professional activities under the threat of disciplinary action, unable to foresee which conduct will result in which penalty, not only harms individual rights but also, in particular, the prestige of the profession. Consequently, this decision places a significant responsibility on the legislator and prolongs the environment of uncertainty that law firms and attorneys will face until new regulations are enacted.

So, what should be done during this period of uncertainty? Until clear regulations are enacted, the conduct of bar disciplinary boards remains a matter of importance. The crucial point here is that disciplinary boards must now adhere not only to existing "statutory provisions" but also to the new normative framework established pursuant to the Constitutional Court's decision. As observed in the jurisprudence of the Court of Cassation and Regional Courts of Appeal, defenses raised in requests for the annulment of disciplinary penalties are now based not only on the factual merits but also on the evaluation of norms according to the criteria of "certainty and foreseeability". In this respect, the Constitutional Court's decision redefines not only the substantive penalty regime of disciplinary law but also its procedural justice.

The Constitutional Court's decision numbered 2025/47 marks a significant turning point for Attorneyship Disciplinary Law. Although the enforcement of the decision has been postponed for a period of nine months, the void created during this interim period necessitates the urgent restructuring of legislation. Following this annulment decision, it is incumbent upon the legislator to enact detailed regulations, within specific criteria, regarding both the definition of disciplinary offenses and the linkage of penalties to concrete actions, as this is a requirement not only for professional security but also for the principle of the rule of law. Therefore, for the protection of legal practitioners' rights and the stable continuation of law firm activities, it has become imperative to establish an exceptional legal framework by leveraging this perceived annulment decision.

The Constitutional Court's relevant decision:

https://normkararlarbilgibankasi.anayasa.gov.tr/Dosyalar/Kararlar/KararPDF/2025-47-nrm.pdf