STF awaits Zanin to decide attorney fees – 06/16/2023 – Panel SA

The plenary of the Supreme Court awaits the eventual appointment of Cristiano Zanin as minister to decide whether a request by the AGU (Attorney General of the Union) on the payment of billions of reais in legal fees should or should not be judged. At this point, the score is tied at five to five.

Zanin was nominated by President Lula to fill the vacancy of Minister Ricardo Lewandovski, who retired and is awaiting a Senate hearing.

The lawsuit pending at the STF involves expenses paid to the opposing party in lawsuits lost by the Union.

Until 2016, the legislation determined that, in case of defeat, the judge could modulate the value of the fees to avoid abuses —both for more and for less.

However, a new law was enacted later, restricting the adjustment only to causes of values ​​considered negligible. However, the parameter of what is derisory has not been defined.

The government and the National OAB, which represents lawyers, differ on the subject before the Supreme Court.

The government wants the plenary to recognize the unconstitutionality of the new legislation. The court has already started deliberating on the admissibility of the request, that is, whether it has enough elements to be judged.

It will be up to Zanin, if approved by the Senate and appointed minister, to cast the tie-breaking vote.

If it decides on admissibility, the justices will then judge the merits of the action.

billionaire cases

The government maintains that it is not against the payment of fees, but wants to avoid what it calls abuses.

An example: in an ongoing tax enforcement action against a company, in the amount of R$ 800 million, the judge removed three partners from the passive pole, because the company’s equity was already enough to cover the debt.

The Union was condemned for the undue inclusion and it was defined by the Justice that the fees would be R$ 50 thousand. However, today the lawyers of the partners discuss with the Union at the STJ (Superior Court of Justice). They consider that the value should be much higher, calculated on R$ 800 million.

In another case, worth R$1.2 billion, the Union legally charged a taxpayer for debts that had already been paid. She withdrew the action, but was still convicted of the error. The lawyer earned BRL 120 million, without much effort, according to the government.

The judge, according to the AGU, had no way of calibrating this amount of fees.

At the other end, the OAB defends the legislation in force and affirms that there is privileged treatment, yes, to the lawyers that integrate the AGU.

This is because, when they win tax recovery cases, they take 20% of the amount owed to the public coffers.

In the case of private lawyers, the percentage is not fixed. The higher the value of the claim, the lower the fixed amount.

In a hypothetical R$10 million tax enforcement action, if they win, federal public lawyers can receive R$2 million in fees against a maximum of R$880,000 paid to private lawyers.

The OAB says it acted in Congress, which approved legislation on the subject. He states that the STJ has already recognized that fees must be calculated according to the percentages set by the Code of Civil Procedure, and not by subjective criteria.

Via advisory, he states that he defends the same thesis in the STF.

“If the AGU intends to return to what was done before the law, it should propose a legislative change and not intend to use the Judiciary for legal revision”, he said in a note.

With Diego Felix

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