The term Attorney General's Office (Procuradoria), within the scope of Public and Constitutional Law, designates the institution or body responsible for the judicial and extrajudicial representation of public law legal entities, as well as the exercise of legal consulting and advisory activities for the Executive Branch. Doctrinally classified as an Essential Function to Justice, its primary purpose is the legal enablement of public policies and the defense of public assets and primary public interest.
1. Definition, Concept, and Legal Nature
The Attorney General's Office, or Public Advocacy, constitutes the set of bodies that exercise state representation in and out of court. From an organic perspective, it is the sector of Public Administration focused on the internal control of the legality of administrative acts and the defense of the Treasury's interests. From a functional perspective, it is embodied as a technical State activity, guided by the functional and technical-legal autonomy of its members.
The legal nature of the Attorney General's Office is that of a permanent institution essential to the State's jurisdictional function, as inferred from the constitutional topography (Chapter IV of Title IV of the 1988 Brazilian Constitution). It differs from the Public Prosecutor's Office (Ministério Público) by its primary function of defending the public law legal entity (Union, States, Federal District, or Municipalities), whereas the Parquet acts in defense of the legal order, the democratic regime, and unavailable social and individual interests.
2. Historical Evolution in Brazilian and Comparative Law
Historically, the functions of judicial representation and criminal prosecution were amalgamated. In Luso-Brazilian Law, the figures of the "Crown Attorney" and the "Public Prosecutor" coexisted with sometimes overlapping competencies. In the Brazilian Empire, the representation of the Crown was exercised by bodies linked to the National Treasury.
The clear distinction between the defense of the State (Public Advocacy) and the defense of society (Public Prosecutor's Office) was only consolidated with the 1988 Federal Constitution. Before that, under the aegis of the 1967/69 Constitution, the Public Prosecutor's Office still exercised the judicial representation of the Union. The 1988 Charter promoted the "professionalization" of state defense, creating the Office of the Attorney General of the Union (AGU) and institutionalizing the State and Federal District Attorney's Offices as typical State careers.
3. Legal Support and Normative Provisions
The legal regime of the Attorney General's Offices is structured in the following fundamental provisions:
- Federal Constitution (CRFB/88):
- Article 131: Defines the Office of the Attorney General of the Union (AGU) as the institution that represents the Union, judicially and extrajudicially.
- Article 132: Establishes that the Attorneys of the States and the Federal District shall exercise the judicial representation and legal consulting of their respective federated units, organized as a career, through public competitive examination.
- Supplementary Law No. 73/1993: Establishes the Organic Law of the Office of the Attorney General of the Union.
- Code of Civil Procedure (Law No. 13.105/2015):
- Article 75: Determines that the Union, States, and Municipalities shall be represented in court, actively and passively, by their attorneys.
- Articles 182 to 184: Address the procedural prerogatives of Public Advocacy, such as the double deadline for all its procedural manifestations.
- Law No. 14.133/2021 (New Bidding Law): Reinforces the role of the Attorney General's Office (legal advisory) in the prior control of the legality of administrative notices and contracts.
4. Practical Application and Jurisprudential Understanding
The jurisprudence of the Superior Courts has consolidated the role of the Attorney General's Offices, especially regarding the exclusivity of representation and career prerogatives.
Unicity of Representation and Exclusivity: The Supreme Federal Court (STF), through ADI 4261, reaffirmed that the activity of legal advisory and judicial representation within the scope of the States is exclusive to State Attorneys, and it is unconstitutional to create parallel legal bodies for autonomous agencies or foundations that are not under the control of the Attorney General's Office (Principle of Unicity).
Succumbence Fees: One of the most intense debates concerned the constitutionality of public attorneys receiving succumbence fees. In the judgment of ADI 6053, the STF declared the receipt of fees constitutional, provided that the constitutional remuneration ceiling provided for in Art. 37, XI, of the CRFB/88 is respected.
Municipal Attorney's Offices: Unlike the States, the Constitution did not expressly provide for the mandatory career of Attorneys for all Municipalities. However, the understanding of the STF (RE 663.696 - Theme 465) and doctrinal evolution point to the need for a public competitive examination for the exercise of these functions, prohibiting discretionary hiring for routine and permanent municipal public advocacy activities.
5. Related Principles and Doctrinal Divergences
The performance of the Attorney General's Offices is governed by fundamental principles:
- Principle of Strict Legality: The Attorney is bound to the defense of the public interest as defined by law, not possessing the freedom of action of a private lawyer.
- Principle of Unavailability of Public Interest: Performance in court (agreements, withdrawals) depends on specific legal authorization, given the nature of the assets managed.
- Technical Autonomy: Although administratively linked to the Executive Branch, the Attorney General's Office enjoys technical independence to issue opinions contrary to the immediate interests of the manager, should these confront the legal order.
A relevant divergence lies in Administrative and Financial Autonomy. While the Public Prosecutor's Office and the Public Defender's Office have full constitutionally guaranteed autonomy, Public Advocacy still struggles for the formal recognition of this same autonomy at the constitutional level (PEC 82/2007 and PEC 443/2009), although the STF has already recognized in recent rulings (such as in ADI 6331) that the Attorney General's Offices possess functional autonomy inherent to their nature as a control body.
6. Contemporary Relevance and Impacts on the Legal Order
Currently, the Attorney General's Office has transcended mere reactive action in court. The most relevant practical impact lies in Consultative Public Advocacy and Litigation Prevention. With the introduction of consensus methods in Public Administration (Law 13.140/2015), the Attorney General's Offices have begun to manage Conciliation and Arbitration Chambers, reducing the volume of judicial processes and providing greater efficiency to public management.
Furthermore, the role of the Attorney is central to Public Compliance and the fight against corruption, acting in the analysis of legal risks and the recovery of diverted assets, consolidating the Attorney General's Office as a State body, not a government one.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Arts. 131 and 132.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- BRAZIL. Supreme Federal Court. ADI 6053 (Succumbence Fees). Rapporteur: Justice Marco Aurélio.
- BRAZIL. Supreme Federal Court. ADI 4261 (Principle of Unicity of Representation). Rapporteur: Justice Ayres Britto.
- BRAZIL. Supreme Federal Court. RE 663.696 (Remuneration ceiling and nature of the career).
- BRAZIL. Superior Court of Justice. Precedent 153: "The withdrawal of tax execution, after the filing of objections, does not exempt the plaintiff from attorney's fees."
