Attorney fees constitute the pecuniary consideration due to a lawyer for the provision of intellectual services of defense and representation, possessing an alimentary nature and a remunerative character. Primarily inserted in Civil Procedural Law and Labor Law, their purpose is to ensure the dignity of professional practice and the economic viability of access to justice.
Concept and Foundation
Attorney fees are doctrinally divided into two categories: contractual (conventional), which emerge from the private relationship between client and counsel, and sucumbential (loser-pays), resulting from the defeat of one of the parties in court. The legal nature of attorney fees is that of an alimentary provision, as stipulated by Article 85, § 14, of the Code of Civil Procedure (CPC/2015), equating them, for the purposes of credit preference, to salaries.
The historical evolution of the institute dates back to Roman Law, where advocacy was initially practiced as a free public munus (the lex Cincia de donis et muneribus prohibited payment). However, the evolution of the legal system consolidated the need for remuneration to ensure the technical independence of the professional from the State and private individuals, establishing advocacy as an essential function for the administration of justice (Art. 133 of the 1988 Federal Constitution).
Legal Provision and Normative Structure
The Brazilian legal system provides robust protection for the institute:
- Code of Civil Procedure (Law No. 13.105/2015): Article 85 establishes the rules for sucumbential fees, setting graduation criteria (10% to 20% on the amount of the conviction, economic benefit, or value of the cause), favoring equity and the professional's work.
- Statute of Advocacy and the Brazilian Bar Association (Law No. 8.906/1994): Article 22 and following ensure the lawyer's autonomous right to fees, including on the amount of the conviction, prohibiting compensation in case of reciprocal succumbing.
- Federal Constitution: Article 133 elevates the lawyer to constitutional status, which grounds the protection of the fee provision as a guarantee of the independence of professional practice.
Jurisprudence and Consolidated Understandings
The Superior Court of Justice (STJ) has established relevant understanding regarding the setting of fees by equity. In the judgment of Repetitive Theme 1.076, the Special Court consolidated the thesis that the setting of fees by equitable appreciation (Art. 85, § 8, of the CPC) is subsidiary, and it is mandatory to observe the order of preference established in § 2 of the same statute, unless the value of the cause is derisory or inestimable.
In the scope of Labor Law, the Labor Reform (Law No. 13.467/2017) introduced Article 791-A into the CLT, providing for conviction in sucumbential fees in labor proceedings. The Supreme Federal Court, when judging ADI 5766, declared the partial unconstitutionality of said article, prohibiting the collection of sucumbential fees from beneficiaries of free justice who did not obtain credits capable of supporting the expense, reaffirming the principle of unrestricted access to the Judiciary.
Related Principles and Doctrinal Divergences
The current debate centers on the tension between the principle of causality and the principle of succumbing. While succumbing links the provision to the result of the process, causality imposes the burden on the one who caused the movement of the judicial machinery, even if they are not the loser in the main dispute. Doctrinally, the nature of the fee provision in voluntary jurisdiction processes is discussed, as well as the possibility of setting fees on the updated value of the cause, aiming at the preservation of the professional's purchasing power against inflation.
Contemporary Relevance
The importance of attorney fees in the contemporary legal scenario transcends the patrimonial aspect. They constitute the ballast that allows the lawyer to maintain an adequate technical structure for the defense of fundamental rights. Current jurisprudence has shown rigor in protecting this provision, curbing the devaluation of fees and reinforcing that the dignity of advocacy is a sine qua non condition for the health of the Democratic State of Law.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 133.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure. Art. 85.
- BRAZIL. Law No. 8.906, of July 4, 1994. Statute of Advocacy and the Brazilian Bar Association.
- SUPERIOR COURT OF JUSTICE. Special Court. EREsp 1.886.570/SP (Theme 1.076). Rel. Min. Raul Araújo. Judged on 03/16/2022.
- SUPREME FEDERAL COURT. Direct Action of Unconstitutionality (ADI) 5766. Rel. Min. Luís Roberto Barroso. Judged on 10/20/2021.
