Breaking confidentiality between lawyer and client facilitates abuses in processes

Legal experts claim that the illegal exposure of conversations between a lawyer and client has serious effects, as it puts the effective protection of citizens in their relationship with the State at risk. On Monday (19), the Brazilian Bar Association (OAB) called the Attorney General’s Office (PGR) to investigate the allegedly criminal conduct of Hiroshi de Araújo Sakaki, Federal Police delegate, who exposed exchanges of information between the lawyer Ralph Tórtima and his client, businessman Roberto Mantovani Filho. The OAB also appealed to the Federal Supreme Court (STF), which accepted the request and redacted the excerpts of conversations between the lawyer and the client from the ongoing case.

In the piece prepared by delegate Sakaki, one of the topics was titled “Roberto’s dealings with his lawyer Ralph Tórtima”. In it, you can find transcriptions of dialogues, prints of images and documents relating to communications between lawyer and client. Mantovani is being investigated after getting involved in a dispute with STF minister Alexandre de Moraes at Rome airport, Italy.

For Beto Simonetti, national president of the OAB, “the prerogatives of law exist to protect the rights and guarantees of citizens represented by lawyers”. The OAB asked the PGR that the delegate’s conduct be investigated for an alleged crime of violating the rights or prerogative of lawyers. The entity relied on art. 7º-B of the Law on the Statute of Advocacy, which considers breaking the confidentiality of professionals a crime and provides for a penalty of up to four years in prison.

Breach of prerogative would facilitate abuse

“It is impossible to effectively protect oneself from the punitive arm of the state if a citizen is unable to have a relationship of trust and exchange confidential information with the lawyer who defends him/her”, says Igor Costa, a criminal lawyer. Costa adds that “a lawyer’s professional secrecy is something inherent without which the exercise of the profession is impossible”.

“If those who exercise punitive power want to do so in an abusive way, as often happens in dictatorships, without being ‘hindered’ by the exercise of technical defense, having access to the private conversation between the lawyer and his client would facilitate the abuse”, says Rodrigo Chemim, professor of Criminal Procedure at Positivo University and doctor in State Law.

“In an effective democracy, otherwise, the control of punitive power is the rule and requires some limitations so that freedom prevails over possible abuses. Otherwise, our freedom would be at the mercy of the goodwill of the dictator on duty,” he adds.

In another case, the STJ annulled the case because a lawyer exposed client confidences

Chemim reinforces the importance of the client being assured of the freedom to say everything they know or think about the case, without any reservation or caution. The specialist compares it with the relationship between doctor and patients. “Given the proportions, for an accurate diagnosis of how to act, the doctor – and the lawyer – need to have full knowledge of everything that is happening with their clients. Otherwise the disease is treated incorrectly,” he says.

Igor Costa recalls a decision by the Superior Court of Justice (STJ) in 2022 during the “bankruptcy mafia” operation in the state of Goiás. On that occasion, the 5th Panel of the STJ annulled the investigation, due to the plea bargain of lawyer Aluísio Flávio Veloso Grande , in which the professional exposed clients, including by presenting illegal recordings of conversations between them.

Minister João Otávio de Noronha, who was the rapporteur of the case, stated that “the conduct of the lawyer who, without just cause and in bad faith, denounces his client causes systemic distrust in the legal profession”. The Disciplinary Ethics Court of the OAB of Goiás even temporarily prevented Grande from practicing the profession.

“The case of the ‘bankruptcy mafia’, which involved fraud against several companies, had much greater proportions when compared to what happened at Rome airport. The entire annulment of the operation was due precisely to the breach of professional secrecy”, says Costa, who reinforces the importance of the prerogative.

Jurists disagree as to whether, in fact, there was criminal intent on the part of the delegate

“It is clear that the conversation between the person being investigated and his lawyer should not have been recorded by the Police in their report. This violates the legal prerogative. There is no doubt about that”, reaffirms Rodrigo Chemim. But, for the expert, “based on reading the OAB letter, it is still too early to say anything in terms of possible crime”. According to him, it would be necessary to investigate whether there was indeed intent, that is, the awareness and intention to commit the criminal act.

“There is no doubt that the delegate’s conduct constitutes a crime of violating the prerogative of lawyers, supported by article 7-B of the Lawyers’ Statute Law. This is a relatively new criminal type that was introduced by the Abuse of Authority Law, sanctioned in 2019”, says Costa.

The lawyer explains that this prerogative can only be violated in situations where the professional is suspected of being involved in illicit practices. “Which did not happen in this case”, he adds.

The Attorney General of the Republic, Paulo Gonet, has not yet commented on the request made by the OAB. Furthermore, there is no expected response from the agency, as there is no formal deadline for the return.