{"id":6506,"date":"2021-09-30T09:00:00","date_gmt":"2021-09-30T06:00:00","guid":{"rendered":"https:\/\/www.efeshukuk.com\/?p=6506"},"modified":"2022-11-28T18:47:46","modified_gmt":"2022-11-28T15:47:46","slug":"menfaat-catismasi-nedir","status":"publish","type":"post","link":"https:\/\/efeshukuk.com\/en\/menfaat-catismasi-nedir\/","title":{"rendered":"What is a conflict of interest?"},"content":{"rendered":"
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\"Menfaat
What is a conflict of interest?<\/figcaption><\/figure>\n<\/div>\n\n\n

Menfaat \u00c7at\u0131\u015fmas\u0131 Nedir? | \u0130zmir Avukat<\/strong><\/p>\n\n\n\n

What is a conflict of interest?<\/h2>\n\n\n\n
\"\"<\/figure>
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menfaat<\/strong>, <\/p>\n\n\n\n

isim, Arap\u00e7a menfa\u02bfat<\/em><\/p>\n\n\n\n

\u00c7\u0131kar<\/p>\n<\/div><\/div>\n\n\n\n

<\/div>\n\n\n\n

\u00c7\u0131kar \u00e7at\u0131\u015fmas\u0131, ki\u015fisel \u00e7\u0131karlar ile mesleki g\u00f6rev veya sorumluluklar aras\u0131ndaki \u00e7at\u0131\u015fma nedeniyle bir kurum veya bireyin g\u00fcvenilemez hale gelmesi ile ortaya \u00e7\u0131kar. B\u00f6yle bir \u00e7at\u0131\u015fma, bir ki\u015finin para, stat\u00fc, bilgi, ili\u015fkiler veya itibar gibi bir \u00e7\u0131kar\u0131 oldu\u011funda ger\u00e7ekle\u015fir. S\u00f6z konusu \u00e7\u0131karlar\u0131 sebebi ile \u00e7\u0131kar \u00e7at\u0131\u015fmas\u0131 ya\u015fayan ki\u015finin eylemlerinin tarafs\u0131z olup olamayaca\u011f\u0131n\u0131 \u015f\u00fcpheli hale gelmektedir. B\u00f6yle bir durum ortaya \u00e7\u0131kt\u0131\u011f\u0131nda, genellikle taraflar\u0131n s\u00fcre\u00e7den ayr\u0131lmalar\u0131 talep edilir. Hatta, menfaat \u00e7at\u0131\u015fmas\u0131n\u0131n oldu\u011fu durumlarda s\u00fcre\u00e7ten \u00e7\u0131kmak genellikle yasal olarak zorunludur.<\/p>\n\n\n\n

Bir ba\u015fka ifade ile menfaat \u00e7at\u0131\u015fmas\u0131, avukat\u0131n savunmakta oldu\u011fu ki\u015filerin \u00e7\u0131karlar\u0131n\u0131n birbiri ile uyu\u015fmamas\u0131 ve bir tarafa ili\u015fkin s\u00fcre\u00e7lerinde di\u011ferine zarar verme ihtimali bulunmas\u0131 halinde ortaya \u00e7\u0131kan bir durumdur. Avukatl\u0131k Kanunu ile d\u00fczenlenmi\u015ftir.<\/p>\n\n\n\n

Menfaat \u00c7at\u0131\u015fmas\u0131na \u0130li\u015fkin Yasal Mevzuat<\/h2>\n\n\n\n

Avukatl\u0131k Kanunu
<\/a>Madde 38 \u2013 <\/strong>Avukat;
a) Kendisine yap\u0131lan teklifi yolsuz veya haks\u0131z g\u00f6r\u00fcr yahut sonradan yolsuz veya haks\u0131z oldu\u011fu kan\u0131s\u0131na var\u0131rsa,
b) Ayn\u0131 i\u015fte menfaati z\u0131t bir tarafa avukatl\u0131k etmi\u015f veya m\u00fctalaa vermi\u015f olursa,
<\/strong>c) (De\u011fi\u015fik : 2\/5\/2001 – 4667\/26 md.) Evvelce h\u00e2kim, hakem, Cumhuriyet savc\u0131s\u0131, bilirki\u015fi veya memur olarak o i\u015fte g\u00f6rev yapm\u0131\u015f olursa,
d) Kendisinin d\u00fczenledi\u011fi bir senet veya s\u00f6zle\u015fmenin h\u00fck\u00fcms\u00fczl\u00fc\u011f\u00fcn\u00fc ileri s\u00fcrmek durumu ortaya \u00e7\u0131km\u0131\u015fsa,
e) (\u0130ptal)
f) G\u00f6rmesi istenilen i\u015f, T\u00fcrkiye Barolar Birli\u011fi taraf\u0131ndan tespit edilen mesleki dayan\u0131\u015fma ve d\u00fczen gereklerine uygun de\u011filse,
Teklifi reddetmek zorunlu\u011fundad\u0131r.<\/p>\n\n\n\n

T\u00fcrkiye Barolar Birli\u011fi Meslek Kurallar\u0131<\/a><\/strong><\/p>\n\n\n\n

Article 36- <\/strong>An attorney who provides legal assistance to one party in a dispute cannot represent or provide legal assistance to the other party whose interests conflict. Attorneys working in a joint office are also bound by the rule of not representing individuals with conflicting interests.<\/p>\n\n\n\n

Turkish Code of Ethics for Mediators<\/strong><\/p>\n\n\n\n

Interest or Conflict of Interest <\/strong><\/p>\n\n\n\n

Article 4-<\/strong> (1) There must be no conflict of interest between the mediator and the parties. The mediator must avoid giving the appearance of having a conflict of interest with the parties. (2) A conflict of interest between the mediator and the parties may arise after the parties apply for mediation, or it may have existed beforehand due to any existing or past personal or professional relationship between the mediator and the parties. (3) In order to conduct the mediation process, the mediator must conduct a reasonable investigation and examination to determine whether there is any event that would lead a bona fide third party to believe that a conflict of interest has arisen or may arise between the parties. The investigation that the mediator will conduct to uncover a conflict of interest that has arisen or may arise between the parties may vary depending on the circumstances of the specific case. (4) The mediator must inform the parties as soon as possible of any conflict of interest that has arisen or may arise that he could reasonably know and that could cast doubt on his impartiality. (5) If any existing or potential conflict of interest between the mediator and the parties is of a nature that would clearly harm the mediator's impartiality and the mediation process, the mediator must refuse mediation and withdraw from the mediation at any stage, regardless of the parties' requests and agreement to the contrary. (6) The mediator cannot subsequently act as a lawyer in a lawsuit filed in relation to the dispute in which he served in this capacity. However, he may act as an arbitrator in an arbitration proceeding if the parties request it with their explicit and written consent.<\/p>\n\n\n\n

Decisions of the Disciplinary Board of the Turkish Bar Association<\/h2>\n\n\n\n

If a lawyer learns that they are representing parties with conflicting interests without their knowledge, they must immediately terminate one of the representations within a reasonable time in accordance with proper procedure. The correct course of action is not merely withdrawing from the representation, but completely refusing the job.
\u2022 Decision of the Disciplinary Board of the Turkish Bar Association dated 21.06.2003, case number 2003\/87, decision number 2003\/202:
<\/strong>\u201c\u2026The complainant learned at the hearing on September 9, 1997, in case number 1997\/88 of the Magistrates' Court that the person in both cases was the same individual. However, after a considerable period, at the hearing on April 7, 1999, he announced his withdrawal from representation in case number 1997\/437 of the Civil Court of First Instance. In this situation, the complainant lawyer should have immediately terminated one of the two representations in accordance with the procedure within a reasonable time, and should not undermine the public's trust and reputation in the legal profession. Therefore, the legal assessment made by the Disciplinary Board was found to be incorrect, and a disciplinary penalty was deemed necessary.\u2019<\/p>\n\n\n\n

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Even if both parties are aware of, or even consent to, a conflict of interest in a case, a lawyer cannot accept the representation of the party with the conflicting interest.
\u2022 Decision of the Disciplinary Board of the Union of Turkish Bar Associations dated 21.01.2006, case number 2005\/378, decision number 2006\/11:
<\/strong>\u201c\u2026From the information and documents in the file, it is understood that the lawyer complained about undertook the representation of \u2026 in the enforcement file numbered 20023\/712 of the \u2026 Enforcement Directorate with a power of attorney dated 12.06.2003, that he undertook the representation of \u2026 in the enforcement file numbered 2003\/3561 of the \u2026 Enforcement Directorate as of 19.06.2003, that he served as the representative of the defendant \u2026 in the file numbered 2003\/228 of the \u2026 Civil Court of First Instance until 07.10.2004, and that he was the representative of \u2026 in the file numbered 2003\/165 of the \u2026 Family Court as of 26.05.2003, and that \u2026 consented in writing to the lawyer complained about being the representative of \u2026, thus the enforcement proceedings and collusion initiated within the same time period and being of the same nature and being a continuation of each other are evident. It has been determined that he acted as a lawyer for opposing parties with conflicting interests in title deed cancellation lawsuits filed due to this reason.
The legislator felt the need to introduce such a regulation because accepting the representation of a party with conflicting interests undermines trust in the legal profession. In cases involving conflicts of interest, a lawyer cannot accept the representation of the party with conflicting interests, even if both parties are aware of the situation and, as in our case, have consented. Otherwise, each party would feel inadequately defended, which would fundamentally erode trust in the legal profession.<\/p>\n\n\n\n

Source: Disciplinary Law for Lawyers, Attorney M. Ha\u015fim M\u0131s\u0131r<\/p>\n\n\n\n

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Supreme Court Decisions<\/h2>\n\n\n\n

\u201c"It is unlawful for defendants to be defended by the same lawyer when there is a conflict of interest between them and it is clear that the defense of one defendant would weaken the defense of the other." (CGK 14.06.2011, 1-44\/122)<\/p>\n\n\n\n

To receive legal advice on this matter, please contact our team. Contact <\/span><\/a>page.<\/p>\n\n\n\n

You may also be interested in the following studies:;<\/p>\n\n\n\n

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