OAB tightens the siege against ‘violators of prerogatives’ – 10/24/2023 – Power

In order to curb practices by public authorities seen as abusive, the OAB (Brazilian Bar Association) systematized a register that lists “violators of prerogatives” of the legal profession. The list may contain names of public agents such as magistrates, members of the Public Prosecutor’s Office, police chiefs and IRS employees.

The initiative provides for punishments for targets, such as preventing them from entering the legal profession, and raises questions about the risks of excesses. The deadline for the sanction has not yet been announced by the OAB.

The so-called “National Register of Violators of Prerogatives” was the subject of a document published by the Order in June. The OAB had already maintained the register since 2018 and now its operation has been regulated and how the sections should act in relation to it.

The prerogatives of lawyers are the rights granted by law for appropriate professional performance. They deal, for example, with the relationship between judges and lawyers, or between them and their clients.

Lawyers can contact their sections or subsections to report violations. The alleged violations, then, must be investigated by the OAB’s local prerogative commissions. If the infraction is verified, the public authority that perpetrated it is registered in the register of the section of the Order involved, and in the National Register.

If you apply for admission to the OAB, the authority registered as a “violator of prerogatives” may have your application for registration denied. Furthermore, she is prohibited from giving lectures at law schools and receiving honors on behalf of the Order.

The list of violators, according to the Federal Council of the OAB, already has more than 300 names, but they are only accessible internally and are not available for public consultation.

The initiative, however, may raise controversy among the affected professional classes.

“The prerogatives of law are dear to all of us, not just lawyers”, highlights Paraná Public Prosecutor’s Office and law professor Rodrigo Chemim. For him, the impediment to practicing law should come from a conviction in court, not from an internal procedure within the OAB.

Chemim recalls that the Law Statute prohibits those who do not have “moral integrity” from exercising the profession.

The same text, he recalls, says that a conviction for an “infamous crime” is a criterion for establishing who is unfit. As there is no exact definition of this crime, Chemim states that a crime created by the Abuse of Authority Law of 2019 serves as a parameter: violating the right or prerogative of a lawyer. Only with a conviction by the Judiciary, argues the prosecutor, would it be legitimate to prevent registration with the Order.

For him, by denying the right to advocate to “violators of prerogatives” without them necessarily being judicially condemned, the registry would be making an extensive interpretation of this law — which should not occur in norms that limit rights.

Ricardo Breier, president of the Prerogatives Committee of the Federal Council of the OAB, considers the inclusion of names in the registry to be an internal process. According to Breier, the Advocacy Statute, a federal law, gives the Order autonomy.

“Federal law gives us this independence to manage and understand, through legal criteria, [quem é] the lawyer who is or is not able to practice law”, he says.

Rodolfo Queiroz Laterza, president of Adepol (Association of Brazilian Police Delegates), expressed concern about abuses and “stigmatization” that could arise from a measure such as registration.

“It is crucial to strike a balance between protecting the prerogatives of the legal profession and respecting the rights and dignity of individuals accused of violations,” Laterza told Sheet.

The report also questioned Apamagis (Associação Paulista de Magistrados), which said it only considered the registration as “an inherent and internal matter of the Brazilian Bar Association”.

Conamp (National Association of Members of the Public Ministry), Ajufe (Association of Federal Judges of Brazil) and the National Association of Federal Police Delegates were contacted, but did not comment on the initiative.

The stipulation of legal fees is one of the most popular topics for complaints in the Prerogative Commissions. The payments due to lawyers, in percentages of the values ​​of the cases, are defined in the Criminal Procedure Code.

Beto Simonetti, president of OAB Nacional, states that, despite the Law Statute having incorporated the requirement, “magistrates across the country still insist on not complying with not only the law, but jurisprudence itself, which, in judgment by the Special Court of Superior Court of Justice, recognized the obligation of this rule”.

Simonetti states that since 2022, the OAB has received 305 reports of violations regarding payment of fees.

Another highlight has to do with the digitalization of the Justice system. Marcelo Oliveira, president of the OAB-RJ Prerogatives Commission, questions attempts to impose the use of virtual hearings in situations where this would not be ideal — such as in custody hearings, held so that the magistrate can verify the physical and psychological integrity of the stuck.

Sectionals — such as those in Rio de Janeiro, São Paulo and Minas Gerais — have established their Prerogative Schools, with the aim of offering courses on the subject to those enrolled.

The president of the OAB-SP Prerogatives Commission, Luiz Fernando Pacheco, says that the creation of the São Paulo school —inaugurated on August 31— came from the assessment that legal rights are unknown “not only on the part of the authorities, on the part of the public authorities, but also by lawyers.”

The section asked the Federal Council in 2022 to include specific questions about prerogatives in the OAB entrance exam.