The
Right of Privacy in Contracting Attorneys’ Fees
by Angélica ARRUDA ALVIM,
Professor of Civil Law at the Pontificate Catholic University of São Paulo –
PUC/SP.
The purpose of this brief study is to examine the contracting
of attorneys’ fees for and the right of privacy in the related contracting
agreements.
To
investigate this judicial mechanism in greater depth, we will begin with a
brief overview of the person of the attorney, as defined in Law No. 8,906/94,
in addition to the Brazilian Code of Civil Procedure. Subsequently, we will
examine the various existing modalities of attorneys’ fees, pursuant to the
classification prescribed in article 22, heading, of Law No. 8,906/94.
The attorney is addressed in article 133 of the 1988
Brazilian Federal Constitution, which declares legal representation essential
for the proper administration of justice. The attorney must hold a Bachelor’s
Degree in Law and be registered with the Brazilian Bar Association. The
attorney may represent a client in judicial or extrajudicial proceedings.
Moreover, the attorney may represent the client before
the Courts or the Public Administration.[1]
The activities of attorneys are governed, in part, by private law (with respect
to the power of attorney agreement signed between the client and the attorney),[2]
and by public law, specifically in regard to the attorney’s activities before
the Courts.
In virtually all cases, claimants may only petition
the Courts through their legal counsel (article 103 of the Brazilian Code of
Civil Procedure). This is referred to as the power to litigate. The provision
of article 103 applies, in addition to defendants, who may only present defense
pleadings through an attorney, while subject, nonetheless, the effects of the
valid summons clause (article 312). There are a few exceptions, such as habeas corpus, pursuant to article. 1, § 1, of Law No. 8,906/94 (Bylaws of the Brazilian Bar
Association).
Law No. 8,906/94 required the presence of an attorney
before special courts (former small claims courts), as well. The Brazilian
Federal Supreme Court then suspended the requirement,[3]
which was reinstituted by Law No. 9,099/95 (article 9) for claims in an amount
greater than 20 monthly minimum salaries. For purposes of appeals before the
Special State Courts, the Law requires that the party be
represented, in such cases, by an attorney (article 41, § 2, Law No.
9,099/95).
Law No. 10,259/2001, which instituted the Special
Civil and Criminal Courts at the federal level, and Law No. 12,153/2009,
governing the Special Courts of the Public Treasury in the States, Federal
District, Territories, and Municipalities, do not include a similar provision
to that prescribed in Law No. 9,099/95, in respect of the waiver of legal
representation in specific cases. Despite the absence of a provision on this
matter, article 1 of Law No. 10,259/2001, governing the subsidiary application
of Law No. 9,099/95, provides for waiver of legal representation within the
limits established in Law No. 9,099/95, namely 20 monthly minimum salaries. The
same holds for the Special Courts of the Public Treasury, as per the provision
of article 27 of Law No. 12,153/2009 on subsidiary application in Law No.
9,099/95.
With regard to their activities, in exceptional cases
attorneys may appear before the Courts without a power of attorney, but are
required to attach one to the case record within the period prescribed in
article 104, § 1, of the Brazilian Code of Civil Procedure: 15 days, which may
be extended an additional 15 days; In the same sense, Law No. 8,906/94, article 5, § 1,
includes a similar provision. The judge may not dismiss the case without a
decision on the merits due, simply, to the absence of a power of attorney,
without first providing a reasonable time for the respective corrective action
(article 76), subject to denial of due process, a violation prohibited under
the Federal Constitutional (article 5, LV, of the Federal Constitution).
The respective powers may be conferred on the attorney
through a public or private power of attorney. Ad judicia powers of attorney (for
purposes of granting general powers of attorney before the Courts) authorize
the attorney to undertake all procedural acts, with the exception of those
specified in article 105, final part, of the Brazilian Code of Civil Procedure,
which, due to their importance, require the grant of specific powers.
The attorney is tasked with representing the party in
Court and, consequently, must be registered with the Brazilian Bar Association,
as per article 3 of Law No. 8,906/94. All acts restricted to practicing
attorneys adopted by any person not registered with the Brazilian Bar
Association are deemed null, pursuant to article 4, heading, of Law No.
8,906/94.
The attorney may resign the power of attorney, but
will remain responsible for a period of ten days following notification of
revocation of the power of attorney, as necessary to prevent losses or harm to
the party. This provision is prescribed in article 112 and sole paragraph of the Brazilian
Code of Civil Procedure.
The power of attorney
may also be revoked by the grantor, pursuant to article 111 of the Brazilian
Code of Civil Procedure. The grantor must then constitute an
attorney-in-fact through execution of a new power of attorney for purposes of
ensuring continued running of the respective proceeding. In these cases,
revocation may be express or implicit in nature, when, for example the grantor
confers a new power of attorney on another legal representative in which an
explicit reservation of powers is not provided. However, tacit revocation will
only enter into force as of notification of the former sponsor.
One
of the key rights conferred on the attorney by the Brazilian Code of Civil
Procedure and the Bylaws of the Brazilian Bar Association (Law No. 8,906/94)
consists in the right to attorneys’ fees.
Pursuant
to article 22 of Law No. 8,906/94 (Bylaws of the Brazilian Bar Association),
“The delivery of professional services entitles professionals registered with
the Brazilian Bar Association to fees negotiated with the client, established
in judgment awards, and stemming from loss-of-suit charges.” According to the
legal provision in question, there are three modalities of attorneys’ fees,
namely: a) negotiated attorneys’ fees; b) loss-of-suit fees; c) fees set by
judicial judgment awards.
The
first modality of fees we want to look at are
negotiated attorneys’ fees, also called contractual fees. These are fees
established in an agreement executed between the attorney and the client.
Ethical
duties require that the fees be established in a written agreement, pursuant to
article 48 of the Brazilian Bar Association Code of Ethics, compliance with
which is mandatory under article 33, heading, of Law No. 8,906/94 (Bylaws of
the Brazilian Bar Association). According to Paulo Luiz
Netto Lôbo, the written fee
agreement renders the respective fees “indisputable and authorizes, in extreme
cases, judicial enforcement.”[4] However, fees may be
negotiated verbally, preferably in the presence of witnesses, in which case
they are also deemed enforceable contractual fees.
Fees
are set on the basis of a number of parameters prescribed in article 49 of the
Brazilian Bar Association Code of Ethics, namely: a) relevance, importance,
complexity, and difficulty of the matter in question; b) the work and time
required; c) the potential for the attorney to be precluded from working other
cases or required to turn away clients or third parties; d) the claim amount,
the financial means of the client, and the advantage thereto from the
professional service; e) the nature of the assistance, based on whether the
service involves a one-time, regular, or permanent client; f) the venue of service
delivery, whether in or out of the attorney’s domicile; g) the professional’s
competence; h) the customary practice in similar cases within the pertinent
jurisdiction.
In
addition to negotiated fees, there are also loss-of-suit fees, which are set by
the Courts in their final decisions. Loss-of-suit fees do not preclude
negotiated fees. For while negotiated fees are those agreed to by the attorney
and the client, loss-of-suit fees are awarded, in general, at
the end of a lawsuit and due and payable by the losing party to the
winning party’s attorney.
The judgment requires
the losing party to pay the winning party’s attorneys’ fees (article 85 of the
Brazilian Code of Civil Procedure). However, the obligation is suspended during
such time as the losing party does not have the means
to meet the respective obligation, pursuant to article 98, § 3, of the
Brazilian Code of Civil Procedure.
By losing party, we
mean the party (or third party) subject to the effects of the judgment, in its
capacity as defendant, or which, as plaintiff, is not successful in its claim,
either in whole or in part.
Specifically, the
Brazilian Code of Civil Procedure adopted the principle of loss-of-suit based
on the idea that the proceeding should not result in losses to the party found
to have the Law on its side. The financial responsibility arising from
loss-of-suit is objective and unrelated to the assignment of guilt to the
losing party in the proceeding.
Expenses and fees are
not always related to loss-of-suit. In fact, the rule that the losing party
should bear the costs of the proceeding stems simply from application of the
principle of causality, by which the party liable for giving rise to the
proceeding should cover the related costs. In the large majority of cases,
after all, it is the losing party, whether plaintiff (in the case of claims
without merit) or defendant (in the case of relief granted to the petitioner),
that renders the proceeding necessary.
Even in his or her
capacity as legal counsel in the proceeding, the winning attorney is entitled
to compensation for the respective fees. In addition to the Bylaws of the
Brazilian Bar Association, article 23 of Law No. 8,906/94, confers on the
attorney the right to the loss-of-suit award, with sole authority to enforce the
judgment at this stage and in the appellate stage.
A judgment award
ordering payment of attorneys’ fees is not contingent on which party is
ultimately benefited, as payment of the fees is prescribed in the Code as an
objective outcome of defeat (article 322, § 1, of the Brazilian Code of Civil
Procedure and Judgment No. 256 of the Federal Supreme Court). Similarly, in the
case of the denial of a claim, irrespective whether a motion is entered or not,
in the rebuttal argument, seeking payment of loss-of-suit fees by the claimant,
the judge may issue a judgment against the claimant through application of the
article above.
Note, however, that
where express mention is not made in the decision to the loss-of-suit judgment
award, the attorney may enter motions to clarify, with a view to correcting the
omission in connection with loss-of-suit. In cases in which the motion to
clarify is not entered through issuance of the res judicata decision, the
Superior Court of Justice had previously held the position that if the Courts
could not revisit the issue and order the losing party to pay the respective
loss-of-suit fees, subject to breach of res judicata. Consider, on this point,
Judgment 453 of the Superior Court of Justice: “Loss-of-suit fees, where
omitted from the res judicata decision, cannot be collected through enforcement
measures or a separate proceeding.” However, following enactment of the 2015
the Brazilian Code of Civil Procedure and article 85, §18, where the omission
persists a separate proceeding is allowed for purposes of determining the
assessment of loss-of-suit fees.
In this light, it is
worth addressing loss-of-suit fees in the case of reciprocal loss-of-suit.
Reciprocal loss-of-suit occurs when each litigant is partially successful and
partially unsuccessful. In these cases, the respective legal costs are
distributed proportionally between the litigants, as both are, in part, the
winning party and the losing party. The pertinent legal costs are not assessed
to the party to which the minimum portion of the claim falls. Compensation
claims for losses and damages in which the decision is favorable to the
claimant, but by which an amount less than the claim amount is awarded, will
not result in reciprocal loss-of-suit (Judgment No. 326 of the Superior Court
of Justice): “In compensation claims for moral damages, judgment awards for
amounts less than the claim amount will not result in reciprocal
loss-of-suit”).
Pursuant
to article 23 of Law No. 8,906/94 (Bylaws of the Brazilian Bar Association), loss-of-suit
fees belong to the attorney, who, in addition, is entitled to enforce the
judgment in respect of the party subject to the loss-of-suit fees, as well as
issue a judicial bond in name thereof. On the other hand, the consolidated
interpretation of the Superior Court of Justice is that loss-of-suit fees
belong to the attorney and the party each,[5] both of whom,
therefore, are entitled to enforce the corresponding amounts (“competing
legitimacy”), as well as enter appeals aimed at increasing the judgment amount
awarded by the Court.
Note
that while the Bylaws of the Brazilian Bar Association (Law No. 8,906/94)
provide that the fees belong to the attorney, the Court adopts, let us say, a
“mixed” interpretation. Specifically, it recognizes the standing of the
attorney to personally enter appeals with a view to securing a higher judgment
award, as a corollary to the idea that the corresponding fees belong, in fact,
to the attorney.[6] At the same time,
compensation for the fees was recognized, as, in fact, the fees do not belong
to the claimant, but to his or her respective sponsors. Judgment 306 of the
Superior Court of Justice lays this position out: “Attorneys’ fees must be
compensated in the cases of reciprocal loss-of-suit, ensuring the attorney the individual
right to enforce the pertinent balance, without excluding the standing of the
party itself.”[7] However, in this
regard, the provision of article 85, § 14, of the CPC indicates that
compensation of fees is prohibited.
When
the attorneys’ fees are not previously negotiated between the attorney and the
client, whether in writing or verbally, these will be awarded
by the Court. In addition, fees will be set by the Court where a dispute
arises between the attorney and the client in respect of the amount owed for legal services.
The
most appropriate judicial mechanism for a Court decision on this matter is
through filing of a “legal fee arbitration action.”
The
Courts cannot deny fundamental rights guaranteed to the individual
professionals engaged in judicial proceedings.
This
assertion includes, by definition, the attorney. On this point, note that if
attorneys’ fees constitute a type of right assured thereto, that right, in our
view, must encompass the right of privacy. In other words, the attorney has the
right to charge the client for contractual fees without the obligation to
disclose the respective amounts to third parties, precisely by virtue of the
attorney’s inherent right to fees, pursuant to the respective right of privacy.
In
this light, a Court decision ordering presentation of the legal services
agreement and the amount paid to the attorney must be deemed to violate
professional confidentiality and the independence of the legal profession.
There
is, on this point, a highly interesting decision issued by the Minas Gerais State Court of Justice.[8]
As
stated in the lead opinion to the decision, “The professional confidentiality
of the attorney is essential to the administration of Justice. As such, the
judge and law enforcement authorities are prohibited from seizing documents
covered by confidentiality and all those that compromise the client or his or
her defense, in accordance with the principle of due process.”
Based
on the decision above,[9] the attorneys filed
an ex-parte motion injunction claiming that the lower-court decision requesting
presentation of the legal services agreement and the amount paid for defense of
the respondents was unlawful. According to the petitioners, the order violated
the independence of the legal profession and the attorney’s free exercise of a
full defense, in addition to the right of privacy. In addition, based on the
information provided the Office of the Public Prosecutor entered a motion with
the 1st Criminal and Enforcement Court of the Judicial District of Varginha (Minas Gerais) to
compute the value of the legal fees agreement and ascertain the origin of such
amounts. The objective, according to the Office, was to locate financial
resources held by the defendants for purposes of a criminal case involving
illegal gambling (jogo do bicho).
With respect to the issue, the case rapporteur ruled that it was not possible
to identify a direct relationship between payment of the attorneys’ fees and
proof as to the commission of the alleged criminal offense by the respondents.
To be sure, according to the Court’s decision, the defendants, in fact, had
access to other sources of income, including companies in the civil
construction segment, real-state and hotel projects through which their family
members could obtain the sums necessary to pay the respective attorneys’ fees.
The decision issued by the Minas Gerais State Court
of Justice went on to state, “The lower-court decision failed to demonstrate
the urgency of the document seizer request, nor did it sufficiently establish
the need to adopt the measure as a means to prevent evidence tampering or
destruction or demonstrate the alleged criminal offense. For this reason, the
Panel granted the ex-parte injunction.”[10]
Notwithstanding the fact that, the Administration of
Justice is, initially, public in nature, the role of the attorney is private. The attorney,
preferably, should represent the citizen, although, as part of its legal
relationship, a democratic State, in contrast to an authoritarian State, also,
in the case of judicial disputes, interacts with the citizen through his or her
attorney. It is clear, therefore, that the attorney should be
paid by the claimant and that the respective right to attorneys’ fees
falls within the private sphere. As part of the attorney’s private property,
the information regarding legal services fee agreements is
protected by the fundamental right of privacy. As such, there should not
be any obligation to disclose the object, amounts, or timetables agreed to with
the clients.
[1] In this light, with regard to the
imperative of legal representation by the attorney before the Public
Administration, Binding Judgment No. 5 of the Brazilian Federal Supreme Court –
STF is applicable, specifically: “The absence of a technical defense by an
attorney in disciplinary administrative proceedings does not violate the
Constitution.”
[2] In the Brazilian Civil Code, the power of attorney agreement is
governed by article 653 and following.
[3] Direct Action of Unconstitutionality – ADIn
1,127-8/DF, decision published in the Judicial Register – DJU of October 14,
1994.
[4] See Paulo Luiz Netto Lôbo, Comentários ao Estatuto da Advocacia e da
OAB, 3.ª ed. São Paulo: Saraiva, 2002, p. 133.
[5] On this point: “CIVIL
PROCEDURE. ENFORCEMENT OF LOSS-OF-SUIT FEES. COMPETING
STANDING PARTY AND LEGAL COUNSEL. ART. 24, § 1, OF LAW No. 8,906/94. PRECEDENT. ENFORCEMENT IN
PROCEEDING OTHER THAN PRINCIPAL. WITHOUT MERIT. VIOLATION OF ART. 589 OF BRAZILIAN CODE OF CIVIL PROCEDURE
(TEXT IN FORCE PRIOR TO LAW No. 11,232/05). INVERSION OF
LOSS-OF-SUIT ONUS. 1. The
case law of this Court has found that, pursuant to article 24, § 1, of Law No.
8,906/94, the case attorney has the independent right to enforce loss-of-suit
fees, having competing standing with the party. 2. Following enactment of Law
No. 11,232/05, execution of the judicial enforcement instrument, current
fulfillment of the judgment is carried out in the same case record, resulting,
as such, in a syncretic proceeding, as it is known. However, enforcement must
first comply with article 589 of the Brazilian Code of Civil Procedure. 3. Both
current fulfillment of the judgment and the previous definitive enforcement
procedure occur in the principal proceeding, so as to prevent the double
charging, above all in the case at hand, which involves the enforcement of
loss-of-suit fees, in which the party and the legal counsel each have standing
to initiate enforcement, pursuant to the reasons cited above. It is important
to note that the possibility of enforcement through a separate motion within
the same proceeding should not be confused with the impossibility of enforcement
through a separate proceeding. The matter does not involve contractual fees, as
the contracted amount may be enforced by legal counsel in a separate
proceeding, given the validity of the contractual covenant as an extrajudicial
enforcement instrument. 4. The ruling under appeal is hereby overturned and the
present enforcement dismissed, based on violation of article 589 of the
Brazilian Code of Civil Procedure, specifically the text in force prior to
enactment of Law No. 11,232/05, which provision must be interpreted in harmony
with article 24, § 1, of Law No. 8,906/94. (...). Special appeal granted” (Special
Appeal – REsp 1138111/RS, Rapporteur Minister Mauro
Campbell Marques, 2nd Panel, decision of 03/02/2010, Judicial
Register – DJe of 03/18/2010); “REGULATORY APPEAL.
CIVIL PROCEDURE. ATTORNEYS’ FEES. ARTICLES 22 AND 23
OF THE LAW No. 8,906/94. COMPETING STANDING PARTY. PRECEDENT. 1. The Superior Court has ruled
that the enforcement of the judgment, with respect to fees arising from
loss-of-suit, may be claimed by the party or the attorney, by virtue of their
competing equal standing. Precedent. 2. Regulatory appeal denied” (Regulatory
Appeal 941.206/RS, Rapporteur Minister Maria Thereza
de Assis Moura, 6th Panel,
decision of 11/24/2009, Judicial Register of 12/14/2009).
Note
the decision of the Federal Supreme Court in Direct Action of
Unconstitutionality – ADIn 1194/DF: “BYLAWS OF THE
BRAZILIAN BAR ASSOCIATION - OAB. ARTICLES 1, § 2; 21, SOLE PARAGRAPH; 22; 23; 24,
§ 3; AND 78 OF LAW No. 8,906/1994. (...). ARTICLE 21 AND SOLE PARAGRAPH:
INTERPRETATION PURSUANT TO CONSTITUTION. ARTICLE 24, § 3º: VIOLATION OF FREEDOM TO
CONTRACT. DIRECT ACT OF UNCONSTITUIONALITY PARTIALLY GRANTED. (...). Article 21 and sole paragraph of
Law No. 8,906/1994 must be interpreted to ensure the freedom to contract with
respect to court awarded loss-of-suit fees is safeguarded. 5. Pursuant to the
interpretation given to article 21 and sole paragraph, § 3 of article 24 of Law
No. 8,906/1994, namely that ‘any provision, clause, regulation, or individual
or collective agreement that withdraws the attorney’s right to receive
loss-of-suit fees.’ 6. Direct action of unconstitutionality with merit, in part
and, in respect of that portion, partially granted for purposes of applying the
interpretation, pursuant to article 21 and sole paragraph and declaring the
unconstitutionality of § 3 of article 24 of Law No. 8,906/1994” (Direct Action
of Unconstitutionality – ADI 1194/DF, Rapporteur Minister Maurício
Corrêa, Rapporteur for Judgment: Minster Cármen Lúcia, Full Chamber,
decision of 05/20/2009, Electronic Judicial Register – DJe
of 09/10/2009, Judicial Register – DJ of 09/11/2009).
[6] With respect to the precedent
finding that both the client and attorney may appeal the portion of the judgment
relating to attorneys’ fees: “CIVIL PROCEDURE. ATTORNEYS’ FEES.
STANDING TO ENTER APPEALS. 1. The case law of the Superior Court of Justice has reached a consensus
opinion that both the party and the attorney have standing to appeal the
judgment with respect to determination of attorneys’ fees. 2. Regulatory Appeal
granted” (Regulatory Appeal – AgRg in Special Appeal
– REsp 532.173/SP, Rapporteur Minister Herman
Benjamin, 2nd Panel, decision of 04/14/2009, Electronic Judicial
Register – DJe 05/06/2009); “CIVIL PROCEDURE. ATTORNEYS’
FEES. STANDING TO ENTER APPEALS. 1. Both the party and the attorney, acting on their own behalf, have
standing to enter appeals in respect of decisions relating to attorneys’ fees.
Precedent” (Superior Court of Justice, Special Appeal – REsp
614.218/PR, Rapporteur Minister João Otávio de Noronha, 2nd Panel, decision of
10/19/2006, Judicial Register – DJ of 12/07/2006); “CIVIL PROCEDURE. ATTORNEYS’
FEES. STANDING OF THE
PARTY AND THE ATTORNEY TO ENTER APPEALS AGAINS JUDGMENT IN RESPECT OF
DETERMINATION OF THE RESPECTIVE AMOUNT. APPLICATION OF THE
CASE LAW TO THE MATTER. ARTICLE 515, § 3, OF THE BRAZILIAN CODE OV CIVIL
PROCEDURE. ABSENCE OF SUPPRESSION OF EXORBITANCE OF
JURISDICTION. EFFECTIVENESS. AWARD OF
NEGLIGIBLE AMOUNT. APPLICABLE MINIMUM. ARTICLE 20, §§ 3 AND
4, OF THE BRAZILIAN CODE OF CIVIL PROCEDURE. PRECEDENT 1. Special appeal against judgment
ruling that the attorney held standing to seek higher attorneys’ fees through
an appeal filed in name thereof and not through the winning party to the
proceeding, as loss-of-suit did not occur in the dispute. 2. The Superior Court
of Justice has extensive case law stating that: ‘It is true that article 23 of
Law No. 8,906/94, which governs the “Bylaws of the Legal Profession,” confers
on the attorney the sole right to enforce the judgment with respect to
loss-of-suit fees. However, this does not preclude the party’s standing to
enforce attorneys’ fees, especially as there is no conflict between them of any
nature (Interlocutory Appeal in Special Appeal – EREsp
134778/MG, 2nd Section, Judicial Register – DJ of 04/28/2003); ‘As
per the consensus position of this Court, both the party and the attorney have
standing to enter appeals against the decision, with respect to legal fees’ (Regulatory
Appeal – AgRg in Special Appeal – REsp
432222/ES, 3rd Panel, Judicial Register – DJ of 04/25/2005); ‘The
attorney, as an interested third party, has standing to enter appeals against
the portion of the judgment regarding the determination of legal fees’ (Special
Appeal – REsp 724867/MA, 4th Panel, DJ de
04/11/2005); ‘the party and the attorney alike have standing to appeal the
decision determining the respective attorneys’ fees’ (Special Appeal – REsp 648328/MS, 5th Panel, Judicial Register –
DJ of 11/29/2004); ‘The Second Section ruled that the attorney, as an
interested third party, has standing to enter appeals against the portion of
the judgment regarding determination of the legal fees’ (Special Appeal – REsp 586337/RS, 3rd Panel, Judicial Register –
DJ of 10/11/2004); ‘Both the party and the attorney have standing to appeal
judgment in regard to attorneys’ fees’ (Special Appeal – REsp
361713/RJ, 4th Panel, Judicial Register – DJ of 05/10/2004); ‘The
Second Section consolidated the Court’s position recognizing the right of the
party to appeal the judicial decision in regard to attorneys’ fees’ (Special
Appeal – REsp 533419/RJ, 3rd Panel,
Judicial Register – DJ of 03/15/2004); ‘Both the attorney and the party have
standing to enter motions in connection with the respective attorneys’ fees’
(Special Appeal – REsp 457753/PR, 3rd
Panel, Judicial Register – DJ of 03/24/2003). 3. The need to ensure a speedy
resolution to the proceeding fully justifies judgment on the merits. Article
515, § 3, of the Brazilian Code of Civil Procedure allows for examination of
the underlying matter, as the issue under discussion is exclusively legal in
nature and there is no formal prohibition or procedural conflict to prevent
analysis of the petition on the merits. There is no logical or legal basis for
denying this Superior Court the prerogative under the legal provision in
question. Therefore, such provision is applied. Absence of
exorbitance of jurisdiction. (...). Article 20, § 3, of the Brazilian
Code of Civil Procedures provides that fees will correspond to at least 10% and
at most to 20% of the judgment award based on: a) the dedication of the
professional; b) the venue of service delivery; c) the nature and value of the
claim, the work performed by the attorney, and the time required for the
attorney’s services. For its part, § 4 states that for purposes of claims
involving small amounts or inestimable values or in which a judgment is not
awarded or in which the ruling is issued against the Public Treasury, and in cases
of enforcement, whether appealed or not, the fees will be set in accordance
through an equitable review by the judge, as per the rules in ‘a’, ‘b,’ and ‘c’
of paragraph 6 above. Pursuant to the final part of § 4 (‘the fees will be set
in accordance with an equitable review by the judge, as per the rules in ‘a’,
‘b,’ and ‘c’ of the paragraph above’), it is perfectly reasonable to set the
fees between a minimum of 10% and a maximum of 20%, even with application of
article 20, § 4, based on an equitable review by the judge. 7. Award of
attorneys’ fees at a negligible level is demeaning and an assault on exercise
of the profession. In view of the principles above requiring that attorneys’
fees be set at a minimum of 10% and a maximum of 20%, in the specific case in
question, if such fees were increased by 20% and given that the debt amount is
R$71.95, the attorney would receive only R$14.38. 8. Attorneys’ fees are hereby
set at R$100.00, due to the simplicity of the matter. Precedent
of all Panels of the Superior Court. 9. Precedent of this Superior
Court. 10. Appeal granted” (Special Appeal – REsp
761379/PR, Rapporteur Minister José Delgado, 1st Panel, decision of
08/16/2005, Judicial Register – DJ of 09/12/2005).
[7] It is worth noting the
possibility of compensating attorneys’ fees, even in cases in which one of the
parties receives free legal representation: “REGULATORY APPEAL. SPECIAL APPEAL.
RECIRPOCAL LOSS-OF-SUIT. COMPENSATION OF THE BENEFICIARY OF
FREE LEGAL REPRESENTATION. I. In the event of reciprocal loss-of-suit,
the attorneys’ fees will be compensated. II. Compensation of the fees also
extends to the beneficiary of free legal representation. Appeal denied”
(Regulatory Appeal – AgRg in Special Appeal – REsp 923.385/RS, Rapporteur Minister Sidnei
Beneti, 3rd Panel, decision of 10/16/2008,
Electronic Judicial Register – DJe of 11/03/2008);
“CIVIL PROCEDURE. (...). ATTORNEYS’ FEES. FREE LEGAL
REPRESENTATION. SUSPENSION. RECIPROCAL LOSS-OF-SUIT. COMPENSATION.
MERIT. (...). ‘Compensation
of attorneys’ fees is possible in cases of reciprocal loss-of-suit, even where
one of the parties receives free legal representation’ (Special Appeal – REsp 791.909/RS, 1st Panel, Minister Teori Albino Zavascki, Judicial
Register – DJ of 12/19/2005). 3. Motion to clarify receive
with regulatory appeal, which is denied” (Motion to Clarify – EDcl in Appeal – Ag 962.948/RS, Rapporteur Minister Carlos
Fernando Mathias (Federal judge convened from Federal Regional Court of Labor
of the 1st Region), 4th Panel, decision of 09/23/2008,
Electronic Judicial Register – DJe of 10/06/2008);
“ADMINISTRATIVE. CIVIL PROCEDURE. FEES. RECIPROCAL LOSS-OF-SUIT. COMPENSATION.
MERIT. (...). The
compensation arising from recognition of reciprocal loss-of-suit is applied even
where one of the parties receives free legal representation. 4. Regulatory
appeal is hereby denied” (Regulatory Appeal – AgRg in
Special Appeal – REsp 1000796/BA, Rapporteur Minister
Paulo Gallotti, 6th Panel, decision of
08/19/2008, Electronic Judicial Review – DJe of 10/13/2008);
“ADMINISTRATIVE LAW. CIVIL PROCEDURE. SPECIAL APPEAL. STATE CIVIL SERVANT. ATTORNEYS’ FEES. COMPENSATION. MERIT. PRECEDENT
OF THE SUPERIOR COURT OF JUSTICE. SPECIAL APPEAL HEARD AND GRANTED. (...). 2. Reciprocal loss-of-suit is
hereby recognized, rendering moot the fact that one of the litigants received
free legal assistance, as this does not prevent compensation of attorneys’
fees. Precedent of
the Superior Court of Justice. 3. Special appeal heard and granted” (Special Appeal – REsp 916.447/RS, Rapporteur Minister Arnaldo
Esteves Lima, 5th Panel, decision of
08/12/2008, Electronic Judicial Register – DJe
09/29/2008).
[8] Minas Gerais
State Court of Justice, MS 1.0000.14.058119-0/000, 5th Criminal
Chamber.
[9] Lívia Scocuglia, Advogado e
réu não são obrigados a mostrar contrato de serviço em juízo. Revista Conjur, dated February
5, 2015.
[10]Lívia Scocuglia, Advogado e
réu não são obrigados a mostrar contrato de serviço em juízo. Revista Conjur, dated February
5, 2015.