Law protects confidentiality of lawyer’s conversation exposed by the PF – 02/19/2024 – Power

The inviolability of communication between client and lawyer can only be broken if there is a suspicion that the professional is involved in illicit practices, say experts consulted by the Sheet.

They see the breach of secrecy as a risk to the guarantee of broad defense.

The matter has once again been debated in legal circles with a recent position from the OAB (Brazilian Bar Association), which presented a petition to the PGR (Attorney General’s Office) and the STF (Supreme Federal Court) this Sunday (18) questioning the exposure of conversations in an inquiry into hostility against minister Alexandre de Moraes.

The inquiry investigates confusion between a group of Brazilian tourists and the minister, last July at Rome International Airport. The PF (Federal Police) concluded in a report published last week that businessman Roberto Mantovani Filho, one of the targets of the investigation, committed real insults against Moraes’ son on the occasion.

However, the investigations were closed and Mantovani was not indicted, since there is a normative instruction that prohibits indictment for crimes of lesser offensive potential, such as real injury, characterized by the “use of violence or de facto means” to offend the dignity or someone’s decorum. In the case file, an analysis of the content found on cell phones seized in the investigation was included, which included, for example, guidance from the defense to the businessman.

According to Jordan Tomazelli, master in procedural law from Ufes (Federal University of Espírito Santo), the Law Statute provides that the lawyer’s prerogative is the confidentiality of his professional communication.

If, by breaking the confidentiality of the person being investigated, the authority identifies a conversation between him and his lawyer, this communication must be protected. The exception to this prerogative, states Tomazelli, occurs when the lawyer himself becomes suspected of committing an illegal act.

The Law Statute guarantees as a lawyer’s right “the inviolability of his office or place of work, as well as his working instruments, his written, electronic, telephone and telematic correspondence, as long as they relate to the practice of law”.

Preserving communication between client and lawyer is central to safeguarding the right to full defense, says Juliana Cesario Alvim, law professor at UFMG (Federal University of Minas Gerais) and Central European University.

“The confidentiality of the legal profession is one of the elements that will guarantee an impartial trial. It is a brick that helps build the building of broad defense”, he states. “If it is imagined that communication between client and lawyer will be exposed, this can limit the possibilities of defense and the lawyer’s own performance.”

The specialist exemplifies the issue by citing Moraes’ decision regarding the investigation involving the Lojas Americanas breach. “The minister authorized a measure to search and seize the emails of the group’s managers and administrators, but expressly excluded from the decision information protected by lawyers’ professional secrecy,” she says.

According to Ana Beatriz Presgrave, law professor at UFRN (Federal University of Rio Grande do Norte), there is no reason for the disclosure of information between lawyer and client in the case of hostility towards Moraes.

“We observed, in the conversation, defense strategies that have nothing to do with the investigation, such as a request not to speak to the press,” says Presgrave, who was a member of the OAB board between 2019 and 2021.

The inquiry, which is public, contained documents, images and transcripts of dialogues between Mantovani and his lawyer, Ralph Tórtima Filho. Mantovani’s defense asked for the conversations to be removed from the process, citing a violation of professional secrecy.

With a similar interpretation, the OAB took action against the PGR and STF against the exposure of the communication, classifying the episode as a “serious offense to the prerogatives of the class”. The entity requests, in addition to the removal of the conversations from the records, the criminal punishment of the delegate responsible for the case, Hiroshi de Araújo Sakaki.

A Sheet He sought out the PF to comment on the case, but has not yet received a response.

According to Presgrave, the inviolability of the prerogative has already been the subject of a summary of the Federal Council of the OAB and the subject of a legislative change in the Statute of Advocacy, Law 8,096, which establishes that it is a crime to “violate the right or prerogative of a lawyer”, with a penalty of imprisonment for two to four years and a fine.

“You cannot mix a lawyer with the person being investigated. One thing is the professional practice of that lawyer and another thing is what the person being investigated may have done. Confusing this is the same as condemning a doctor who saved the life of a convict”, he states.