ADVERTISING BAN ON LAWYERS EXTENDED
On 09.08.2024, the Regulation on Advertising Prohibition of the Union of Turkish Bar Associations (“Regulation”) was published in the Official Gazette dated 09.08.2024 and the scope of the existing prohibitions in the Regulation has been expanded and restrictions have been imposed on all promotional activities to be carried out by lawyers.
WHAT ARE THE RESTRICTIONS?
The restrictions imposed on lawyers are generally summarized in Article 7 of the Regulation.
- Within the scope of the regulation in sub-paragraph b of the Article, lawyers “may not make advertising posts about their lives, earnings and professional activities in a way to be associated with their professional identity. In written, audio, visual and online communication tools, in cases where the title of lawyer is used, they must avoid behaviors that may damage the reputation of the legal profession in their posts regarding their private lives.” The relevant article in the Regulation states that the private lives of lawyers can also be scrutinized. However, with this restriction, there is no explanation as to which posts are compatible with the reputation of the profession; therefore, in our opinion, if the provision is interpreted broadly, it is foreseen that the private lives of lawyers may also be affected.
- Within the scope of the regulation in subparagraph c of the Article, lawyers are prohibited from “highlighting past or current cases or the legal work they are working on in written, audio, visual and online communication tools in a way that may constitute advertisement. They may not make statements and posts by acting as the spokesperson of the parties. In cases of necessity, they may provide information and make statements, provided that they remain within the legal dimensions of their past or current case files. However, for the purpose of obtaining business, they may not publish or make written or visual posts by sharing general and abstract information that is accessible to everyone.”
In this context, it is envisaged that lawyers will not include any elements that may be considered as advertisements about their work. Within the scope of the Regulation, it is stated that lawyers can only make statements with the legal dimension of their work and should not act as the spokesperson of the parties, but if the statements regarding the lawsuits and legal affairs made due to the nature of the legal profession are included in the scope in practice, an investigation may be initiated against the lawyers.
The provision that raises the most questions, especially among lawyers, is subparagraph ç of Article 7 of the Regulation. The relevant provision reads as follows;“In written, audio, visual communication tools and online channels, in publications in which they participate or are a part of, in whatever capacity, they must refrain from any behavior that may be considered as advertisement, and from all kinds of statements and posts that damage the reputation of the legal profession.” Although the phrase “online media” is quite broad, if the provision is interpreted broadly, it may be inferred that even information containing legal news or legal comments of lawyers cannot be published on social media.
Especially on social media such as LinkedIn, which is widely used by lawyers, law firms or freelance lawyers post personal comments on legislation and legal developments. Pursuant to subparagraph ç of Article 7 of the Regulation, the possibility of scrutinizing these posts has come to the fore, and since there is no guidance on which posts may be considered as advertisements, it is clear that question marks will arise in practice.
- In subparagraph d of the article; “They cannot use domain names with content aimed solely at gaining fame, putting themselves ahead of their colleagues, and obtaining business through advertising. The domain name cannot be contrary to the dignity of the legal profession. The name and surname of the owner or owners of the website, their academic title in the field of law, if any, their photograph, the name and surname of the other lawyers working in the office, their academic title in the field of law, if any, their registered title if they are a law partnership, their office title if they are a law office, their Turkish Bar Association and bar association registration numbers, the date they started practicing, the university they graduated from, the foreign language they speak, the office address where the professional activity is carried out, telephone and fax numbers, e-mail and registered e-mail address. They may not post information about their clients or the persons and institutions they advise on their websites under the name of “references” or any other name. On their websites, they may provide information about the areas in which the office operates, without implying expertise.”
With this provision, it is seen that strict frameworks are introduced for the content on the websites of law firms or freelance lawyers. In addition, law firms or freelance lawyers are restricted from stating their expertise in any subject.
- In subparagraph e of the Article; “They may not use leading codes, keywords, subdomains, page addresses or apply similar methods to emphasize their professional activities and to rank high in search engines in online channels and in the design of their websites or in codes that can be perceived by search engines, for the purpose of obtaining business and in a way that will lead to competition with their colleagues. They may not engage in any business or transaction that will bring to the forefront the content they have prepared, had prepared or prepared for themselves in online media, either for a fee or free of charge. They may not use or allow the use of internet shortcuts that will direct internet users to their own site or from their own site to another site; they may not give or receive advertisements in online media.”
The provision restricts all kinds of actions that law firms or freelance lawyers may take in order to highlight the social media and websites they use in a technical sense.
Today, law firms and freelance lawyers share information and articles on various topics. However, pursuant to subparagraph e of Article 7, it is understood that the words in the shared articles may be defined as keywords and this may lead to sanctions against lawyers.
In particular, the last part of the provision states that “Lawyers shall not use or allow the use of internet shortcuts that will direct internet users to their own website or to another website from their own website” and that the posts made on social media should not contain links to their own websites. This is a method used by almost all lawyers today, and it is quite possible that there may be practical difficulties in the implementation of the relevant provision.
SANCTIONS TO BE APPLIED IN CASE OF VIOLATION OF THE REGULATION
Article 12 of the Regulation reads as follows: “In the event that any violation of the provisions of this Regulation is detected in any way, a disciplinary investigation shall be opened ex officio by the bar association. The opening of a disciplinary investigation shall be notified to the person concerned in writing, including the request for defense. In the notification, it shall be notified that if it is concluded that the advertisement prohibition has been violated as a result of the investigation, the Board of Directors of the Bar may decide to initiate a prosecution; at the end of the prosecution, the Bar Disciplinary Board may impose sanctions due to the violation of the advertisement prohibition; if the violation of the advertisement prohibition is corrected immediately after the notification, this may be accepted as a discretionary discount at the end of the prosecution.
Those who are within the scope of this Regulation are obliged to immediately cease the violation as of the notification of the finalized Disciplinary Board decision determining that the advertising prohibition has been violated against them. In case the violation is not immediately terminated, a new investigation shall be initiated and the provisions on repetition shall apply. Investigations and prosecutions within the scope of this Regulation shall be resolved primarily by the Boards of Directors and Disciplinary Boards of the Bar Association and the Union of Turkish Bar Associations.” The sanctions to be applied in case of violation of the provisions of the Regulation are specified , but the warning letter protocol previously included in the Regulation has been abolished. The warning letter, which was abolished by the Regulation, states that in case of violation of the provisions of the Regulation, a warning letter shall be sent to the relevant person and the violation shall be corrected within 15 days, otherwise an investigation shall be opened ex officio by the bar association, while with the new regulation, it is envisaged that in case of detection of a violation, an ex officio investigation shall be opened against the relevant person without sending a warning letter and without waiting for 15 days.
In the event that the disciplinary investigation is finalized, those who are found to have violated the Regulation are obliged to immediately terminate the behavior contrary to the Regulation, and if they do not terminate the behavior, a new investigation will be opened.
In addition, pursuant to the provisional Article 3 of the Regulation, Articles 5 (Provision determining the principles regarding the signboards of law offices) and 6 (Provision regulating the principles regarding printed and electronic documents) and subparagraph d of paragraph 1 of Article 7 must be fulfilled within 3 months from the publication of this Regulation.
GRC LEGAL COMMENT
With the amendments made to the Regulation, the scope of the prohibition of advertisement applied to lawyers has been considerably expanded. The most noteworthy issue in the Regulation is lawyers’ internet posts and their presence on the internet. Today, many lawyers/law firms share their comments and opinions with their colleagues and persons interested in the field of law by using platforms such as LinkedIn. These posts are not limited to social media platforms, and similar comments and opinions are also posted on their own websites. However, as a result of the amended provisions of the Regulation, there is a possibility that lawyers may face sanctions as a result of these posts being considered as “advertisements”.
Since the Regulation’s expressions such as “any behavior that may be deemed as advertisement”, “for the sole purpose of gaining fame”, “posts that have the nature of advertisement” etc. are quite vague, it is possible that the provisions of the Regulation may lead to confusion and ambiguity in practice.
In our opinion, it can be said that the Regulation will reduce legal posts on the internet and the opportunity for lawyers to exchange ideas, and citizens who follow legal posts will be deprived of their freedom of information. Pursuant to the Regulation, the posts made by lawyers on websites and social media may be considered as “advertisements”.
On 09.08.2024, the Regulation entered into force upon its publication in the Official Gazette. Although the possible problems that the Regulation may cause in practice and the attitude of the bar associations in practice are not yet clear, it will be inevitable that legal posts on the internet and social media will decrease and some lawyers will face investigation processes due to reasons arising from the Regulation.
