Introduction to the Regulatory Framework
1. How many categories of lawyer are there in your jurisdiction?
In Brazil there is only one category of lawyer (advogado). Only lawyers duly enrolledwith the Brazilian Bar Association (Ordem dos Advogados do Brasil) have rights of audience before the Brazilian Judiciary (this restriction does not apply to filing a writ of habeas corpus) and to provide consultancy and guidance on legal matters (see Question 7).
The incorporation document of Brazilian companies must be executed by a lawyer to
be registered with the relevant public registry. Exceptions to this rule apply to microcompanies (companies with annual gross revenues equal to or less than BRL360,000) and small companies (companies with annual gross revenues between BRL360,000 and BRL4.8 million).
2. What stages of legal education must be completed to qualify as a lawyer in your jurisdiction?
To be admitted to practise law in Brazil, an individual must obtain a Bachelor of Laws degree from an accredited institution. The law degree is a five-year course.
3. What are the requirements to obtain a practising certificate/licence? How often must this be renewed?
After completing the legal education and obtaining a Bachelor of Laws degree from an accredited institution, candidates must pass the Brazilian Bar Examination. It is not necessary to complete an internship, although it is highly recommended.
There is no specific additional requirements to practise as an in-house lawyer.
4. Are there any limitations on lawyers advising throughout your jurisdiction?
A lawyer enrolled with the Bar Association chapter (branch) of a given state is only eligible to handle up to five legal proceedings in another state without enrolment with the other state’s chapter. Failure to comply with this can trigger the opening of administrative proceedings before the ethics tribunal of the state in which the lawyer is not enrolled.
A qualified lawyer can advise on any area of law.
5. Are there any written codes of conduct or handbooks, or rules and/or principles that lawyers are required to abide by?
The two main sets of rules governing the conduct of lawyers in Brazil are the:
• General Rules of the Bar Association, enacted by the Bar Association’s Federal Council.
• Ethics and Disciplinary Code of the Bar Association.
The decisions of the Federal Bar Association and each state chapter of the Bar Association are also binding.
Lawyers must also defend the rule of law, human rights and fundamental guarantees, citizenship, morality, justice and social peace.
6. What are the key rules governing the legal profession in the jurisdiction?
The main piece of legislation governing the legal profession in Brazil is Law No. 8,906/1994 (Bar Association Statute).
7. Who has the right to conduct litigation in court, and who has rights of audience?
Right to Conduct Litigation
Only lawyers can conduct litigation in court. In general, any individual or entity pleading before a court must engage a lawyer. However, individuals can represent themselves in the following circumstances:
• The filing of habeas corpus before any court.
• In a small claims court, in proceedings in which the amount claimed is equivalent to no more than 20 times the minimum wage (currently BRL24,200). This does not apply in the case of a review of the decision by a court of appeals.
• In labour lawsuits filed by employees. Again, this exception does not apply where a decision is reviewed by a court of appeals.
Rights of Audience
As there is only one type of lawyer in Brazil, all lawyers have rights of audience, which allow them to appear and conduct proceedings in court on behalf of their client.
Individuals can also represent themselves in conciliation hearings and in the types of hearing set out above under Right to conduct litigation.
Professional Structures
8. How are law firms in your jurisdiction usually organized?
It is legal for lawyers to operate as sole practitioners in Brazil.
Law firms are organised as unlimited liability partnerships. Firms must file their incorporation documents and any subsequent amendments of these with the Bar Association chapter of the state where they are headquartered, and in any state in which the firm has a branch.
Changes to legislation have permitted the formation of single member law firms. This structure gives access to the simplified and reduced taxation available to small and medium-sized enterprises (SMEs). Accordingly, a sole practitioner can conduct business either as a self-employed worker or as an incorporated single member law firm. The latter alternative allows the lawyer to pay less tax.
9. Are multi-disciplinary practices (MDPs) allowed in your jurisdiction?
Section II of Article 1 of the Bar Association Statute prohibits lawyers from providing both legal and non-legal services.
However the Brazilian Bar Association permits lawyers to provide other professional activities where the other activities are:
• Provided at a business establishment other than the one at which the lawyer provides legal services.
• Not advertised or marketed together with the lawyer’s legal services.
• Not provided to the lawyer’s legal clients.
Lawyers who fail to comply with this restriction can be subject to disciplinary measures, with the strongest available sanction being disbarment. Law firms that provide services other than legal services can lose the benefit of the reduced municipal service tax rate available to law firms.
10. Are community and/or alternative legal service providers common? If so, to what restrictions are they subject, if any?
Community Legal Service Providers
Legal charities, advice centres attributed to law schools and pro bono units are common to help those in need, although free legal aid and public defenders are already provided by the state for them.
Alternative Legal Service Providers
Alternative legal service providers are not permitted in Brazil. A person who provides legal services while not a qualified lawyer commits the criminal offence of illegal practise of a profession. This is punishable by a prison term of between 15 days and three months and a fine.
11. Are there any restrictions on self-employed lawyers providing legal services on a freelance basis?
In theory, self-employed lawyers can provide legal services on a freelance basis. Conflict of interest restrictions will apply where appropriate.
12. Do restrictions apply to lawyers qualified outside your jurisdiction/law firms established in another country practising in your jurisdiction?
Only Brazilian-qualified lawyers can practise Brazilian law. Foreign lawyers can also register with the Brazilian Bar Association as foreign law consultants. This permits them to provide advice in Brazil on the law of their country of origin. Foreign law firms composed of foreign law consultants can also register with the Brazilian Bar Association in this capacity.
Foreign lawyers intending to practise the law of their country of origin must enrol as foreign law consultants with the state chapter of the Brazilian Bar Association where they intend to practise. To do this, the following requirements, contained in Brazilian Bar Association Regulation No. 91/2000, must be satisfied:
• They are resident in Brazil.
• They submit evidence of being duly registered with the foreign bar association where they are admitted to practise.
• They can provide evidence of good conduct and reputation attested to in writing by their foreign bar association, as well as from three Brazilian lawyers.
• The foreign bar association where they are admitted to practise provides evidence that they have not committed any ethical violations.
• There is evidence that the lawyer has not been convicted in a final nonappealable criminal proceeding either where they are admitted to practise or in Brazil.
The foreign lawyer will only be entitled to provide consulting services on the laws of the country where they are licensed to practise.
The Brazilian Bar Association prevents Brazilian law firms from having formal associations with foreign lawyers or law firms.
Temporary Services
Lawyers qualified in another jurisdiction cannot provide temporary legal services in relation to Brazilian law until they obtain a licence to practise in Brazil with the Brazilian Bar Association. They can provide temporary services on the laws of the country where they are licensed to practise.
Registration
Foreign lawyers can enrol with the Brazilian Bar Association as foreign law consultants, which will allow them to practise in Brazil providing legal advice on the law of their country of origin. Foreign law firms composed of foreign law consultants can also register with the Brazilian Bar Association in this capacity.
Bar Admittance
All lawyers are required to pass the Brazilian Bar Examination to practise Brazilian Law.
Legal Education, Workplace Training and Qualifying Tests
Foreign lawyers can requalify as Brazilian lawyers, provided their law degree is recognised by a competent Brazilian university designated by the Ministry of Education. Portuguese lawyers can provide their law degree issued by an officially accredited teaching institution in Portugal, accompanied by the academic transcript. However, they will still be required to pass the Brazilian Bar Examination.
Client Protection
13. Is there a national regulator of the legal profession? In a federal jurisdiction, which body regulates the legal profession in the individual states?
The legal profession in Brazil is regulated by the Federal Council of the Brazilian Bar Association. The Federal Council of the Brazilian Bar Association provides general rules and guidance in relation to the legal profession and serves as a final appellate court competent to review the disciplinary decisions applied by the ethics and discipline tribunal of each state bar chapter.
14. Is there a register of qualified lawyers and, if so, how can it be accessed?
The National Lawyers Database can be accessed at the following website: http://cna.oab.org.br/
15. Is membership of a national bar association, law society or similar mandatory?
Registration with the Brazilian Bar Association, through one or more of itsstate chapters, is mandatory for lawyers and law firms. The website of the Brazilian Bar Association can be found at: www.oab.org.br/. The e-mail address is
imprensa@oab.org.br and the telephone number is +55 61 2193 9600. No other membership is required.
16. Is there an independent disciplinary tribunal, and what disciplinary powers do the relevant regulatory bodies have? What sanctions are available?
Each state Bar Association chapter has its own ethics and discipline tribunal with the authority to apply the following sanctions to lawyers:
• Reprimands.
• Suspensions.
• Disbarment.
• Fines.
Decisions made at state level can be appealed to the Federal Council of the Brazilian Bar Association.
17. Is indemnity insurance mandatory for practising lawyers? If so, what is the minimum level of cover required and are there any mandatory terms?
There is no legal requirement for practising lawyers to take out professional indemnity insurance. Very few lawyers and law firms in Brazil carry professional indemnity insurance. The liability of lawyers for losses and damages caused to clients is unlimited.
18. What are the rules on conflicts of interest?
Lawyers from the same law firm or who work in permanent co-operation must not represent clients with opposing interests in litigation (Articles 19 and 20, Ethics and Disciplinary Code of the Bar Association). Once a conflict of interest arises, the lawyers must choose which client they wish to represent.
The case law of some state ethics tribunals, in particular that from the São Paulo chapter, has expanded this restriction to explicitly ban simultaneous representation in claims against a company and in favour of one of its shareholders. The case law also determines that possible conflicts of interest should be raised by the lawyer, who should inform the client and discuss the situation with them.
19. What actions must a lawyer take when a conflict arises?
See Question 18.
20. When can a lawyer represent more than one client in a transaction? Can a lawyer act for either of the clients between whom a conflict arises?
See Question 18. A lawyer can represent more than one client in a transaction in which both clients have mutual interests. Where a conflict arises between the clients, the lawyer must decide which client to represent, terminating the legal representation with the other client and keeping confidential any information received from them.
21. To whom should complaints about lawyers’ professional conduct be made?
Complaints should be filed with the ethics and disciplinary tribunal of the competent Bar Association state chapter.
22. Can lawyers/law firms hold client files, money or property in the event of a dispute about their retainer or fees?
Lawyers and law firms are authorised to withhold client files and money in the event of a dispute about their retainer or fees (Article 48, paragraph 2, General Rules of the Bar Association). However, this can only be done if it has been sanctioned by a written agreement between the lawyer and their client.
Client Engagement
23. What do client engagement communications typically include? Are there any mandatory provisions that must be included? Are there separate provisions for litigation and non-litigation (transaction or advisory) matters?
The engagement letter typically includes provisions on:
• Scope of work.
• The amount of legal fees.
• Timeframe for completion of the work.
• Form of payment.
• Limitation of liability.
• Duration.
• Termination of the agreement between lawyer and client.
There are no mandatory provisions.
In principle, there is no difference between engagement letters regarding litigation and non-litigation business. However, the former is more likely to contain success fee or contingent fee structures.
24.Does a legal professional have any on-going obligations in relation to the client?
The lawyer has a fiduciary duty towards their client. This duty includes, among other things, an obligation of care and confidentiality. It also requires a lawyer to act in an ethical and respectful manner towards their client.
25. Can a legal professional refuse to accept a client instruction or cease to act, and in what circumstances?
A lawyer can refuse to accept an instruction or cease to act for a client at any time. However, the lawyer must continue to represent the client for a ten-day period after they have notified the client of their intention to cease representing the client. This requirement does not apply if the lawyer could be replaced by another lawyer within a shorter period.
26. Do clients have direct access to all lawyers working on their matter?
Clients have direct access to all lawyers without restrictions.
Confidentiality and Legal Professional Privilege
27. Are lawyers bound by client confidentiality rules?
All lawyers are bound by a duty of confidentiality that arises the moment they agree to represent the client. This duty is imposed only on the lawyer. Clients are free to disclose any information exchanged with their lawyer.
Lawyers cannot act in a proceeding against former clients for a period of two years from the termination of their attorney-client relationship. Members leaving a law firm cannot provide legal advice to clients of that firm for two years, even if such clients contacted them following their departure from their former law firm.
28. Are there any exceptions to the client confidentiality rules?
The duty of confidentiality can be waived in exceptional circumstances. Examples of this include cases of a serious threat to the life and to protect the honour of the lawyer, or where disclosure is required for the lawyer’s defence.
29. Are communications with lawyers protected from disclosure (that is, privileged) in judicial or other proceedings?
All information exchanged between lawyer and clients is privileged.
A lawyer is granted inviolability (that is, prohibition of access by third parties without lawyer’s consent), which applies to their office or workplace, work tools and instruments, written, electronic and telephone correspondence and communications relating to the practice of law.
If there is evidence that a lawyer has committed a crime, a judge can lift the lawyer’s inviolability to allow a search and seizure order to be enforced. A representative of the Brazilian Bar Association must be present while this is done. The use of documents, media and objects belonging to clients, as well as any other work instruments containing clients’ information, is forbidden.
30. Do in-house lawyers have the same legal professional privilege protection as lawyers in private practice?
In-house lawyers have the same legal professional privilege as those in private practice, provided they have been granted the necessary authority to represent the company.
Fees
31. How are legal fees regulated? Is there a tariff system?
Each Bar Association state chapter sets a fee schedule containing minimum fees that a lawyer can charge for certain types of work.
The Brazilian Antitrust Authority (CADE) has in the past signalled that this type of tariff system may be looked on as being anti-competitive. However, no sanctions have yet been applied in relation to fee schedules.
Client and lawyer are free to discuss how fees are to be charged. These can be set as a fixed fees, hourly fees and/or contingent fees. Contingent fee structures are usually used by lawyers representing claimants in labour claims. Fees can be fully contingent, usually amounting to up to 30% of the proceeds received by the claimant.
32. What types of fee agreements are most commonly used for litigation and non-litigation matters? What formal requirements exist for fee agreements?
See Question 31.
Client Money
33. How is the holding of client funds regulated?
Brazilian law firms do not require the use of client escrow accounts. Any client money is usually kept together with office money but must be adequately segregated in the firm’s accounting records and balance sheet.
34. Are there rules on money laundering affecting the legal profession? Is there any overriding body in your jurisdiction that provides anti-money laundering (AML) supervision in the legal sector?
A lawyer found committing, assisting or otherwise contributing to any activities related to money laundering, for their clients or otherwise, can be charged with the crime of money laundering (Article 1, Law No. 9,613/1998). The Financial Activities Control Council (COAF) is the overriding body in Brazil that provides anti-money laundering supervision in general, not only in the legal sector.
The prevailing understanding, supported by the Brazilian Bar Association, is that lawyers are not required to investigate the origin of the money received as attorney fees.
Notaries
35. Are notaries required for share purchases or transfers, real estate purchases or leases, or company formation?
Notaries are not required for purchasing or transferring shares, or to perform any other corporate transaction such as incorporation, merger, spin-off or conversion into a different type of entity.
Lease agreements do not require registration before a notary except where the lessee wishes to exercise its right of first refusal to purchase the leased property, and wants the lease agreement to be respected by a new owner if it fails to exercise its right of first refusal. In such a case the lease agreement should be duly annotated in the title record.
Real estate purchases must be registered by a notary, since the transfer of ownership of Brazilian real estate by sale and purchase requires both the:
• Execution of a public deed of sale and purchase by a notary public.
• Registration of the executed public deed of sale and purchase with the competent real estate registry.
It is common practice in Brazil to require authentication of signatures by a notary public for many types of instrument, act and agreement executed by individuals and entities, even where this is not prescribed by law.
Notaries are not required for company formation.
36. Are notary fees fixed or a percentage of the transaction value?
Notary fees are fixed at state level. Fee levels are updated from time to time by the competent state judiciary branch.
37. Can notaries work within law firms?
The Bar Association Statute specifically prohibits individuals involved in the rendering of notarial services from practising law.
38. Is there a national regulatory body for notaries?
The notarial profession is regulated by Law No. 8,935/1994. Notaries are monitored by the office of general internal affairs of each state judiciary branch.