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Pro Bono Practices and Opportunities in Brazil

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Pro Bono Practices and Opportunities in Brazil Pro Bono Practices and Opportunities in Brazil INTRODUCTION Brazil is Latin America’s largest country and arguably the region’s leading economy, home to a vibrant and developed legal community. Despite these and its many other positive attributes, it is also a country suffering from widespread inequality. While this combination would appear to present meaningful opportunities for the provision of pro bono legal services, the Brazilian legal community does not have a long-standing tradition of providing such services. The Brazilian Federal Constitution (the “Constitution”) sets forth as fundamental rights the right to access to justice and the right to free legal assistance, but in practice such fundamental rights are not yet fully accessible for a significant part of the population. Pro bono work could help provide assistance where State-funded legal aid is not available, but regulatory restrictions that were in force until recently have significantly hindered the development of pro bono work in the country. However, there have been important changes in the last few years, with gradual but clear signs of evolution in terms of regulation and the mentality of the legal community in general. Law practitioners in Brazil have been devoting increasing resources to pro bono activities and pro bono services are expected to increase in the future. OVERVIEW OF THE LEGAL SYSTEM The Justice System Constitution and Governing Laws The Constitution was approved in October 5, 1988 and is the fundamental and supreme law of Brazil. It establishes that Brazil is a federal presidential republic, based on a representative democracy. The President is both the head of state and the head of government. The political and administrative organization of Brazil comprises the federal government, the states (26 states and one federal district) and the municipalities. The federal government is divided into three independent branches: the executive power, exercised by the President (elected to a four-year term), supported by Ministers; the legislative power, exercised by the National Congress (composed of the Federal Senate and the Chamber of Deputies); and the judicial power, exercised by different courts, as described below. Likewise, the government of each state has an executive power, which is exercised by the Governor (elected to a four-year term); a legislative power; and a judiciary power, as described below. Each municipality has an autonomous local government, comprising a mayor (the executive power, elected to a four-year term) and a legislative assembly. The Constitution provides for the constitutional right of access to justice and defines the Brazilian judicial structure. The Courts Levels, Relevant Types, and Locations The Constitution organizes the judicial system into specialized courts and ordinary courts.1 The Supreme Federal Court and the Superior Court of Justice are the heads of the system. The specialized courts are divided between the military courts, labor courts and electoral courts. The ordinary courts are divided between the Federal and the State branches. Each Federal and State branch has courts of first instance and courts of second instance; first instance decisions are usually issued by one judge; second instance decisions are usually issued by a panel of three judges. First instance courts may specialize on a given legal subject, such as family law or criminal law. 1 Article 92 of the Brazilian Federal Constitution. 91 BRAZIL Appointed vs. Elected Judges Brazilian judges of first and second instance courts need to be approved in public competitions. There is an exception for judges of second instance courts which can be indicated by the Executive power. Those cases are limited to renamed attorneys or Public Prosecuter (“Quinto Constitucional”).2 The Practice of Law Education In order to permissibly practice law in Brazil, a lawyer (advogado) must be registered with the Brazilian Bar Association. In order to register with the Brazilian Bar Association, an individual must (i) have a law degree, and (ii) have been approved in a final examination to the Brazilian Bar Association, among others.3 Each of the states and the federal district is responsible for licensing attorneys in their territories, through the respective State Bar Associations. For example, an attorney must have gained admission to the Bar Association of São Paulo prior to practicing law in that jurisdiction on a regular basis. Lawyers admitted in one State Bar Association can practice law in other States without the need for supplementary registration as long as their work is limited to the simultaneous performance of five specific acts in another state, falling into any of the three following categories: (i) pleadings before Court; (ii) legal counseling and (iii) legal management. To act in other States without limitation, lawyers need to request a supplementary registration before the other State Bar Association or request the assignment of the registration from the original State Bar Association. Licensure and Legal Regulation of Lawyers The practice of law is organized through Bar Associations in each of the Brazilian states or federal district (the “State Bar Associations”). These State Bar Associations are in turn joined into the Ordem dos Advogados do Brasil (the “Brazilian Bar Association”),4 which is empowered by federal law to regulate the profession. The practice of law in Brazil is regulated by means of a federal statute – Law No 8,906 of July 4, 1994 – and other legislation, among which is the Brazilian Bar Association’s Code of Ethics and Discipline of February 13, 1995, as amended from time to time. The Brazilian Bar Association’s Code of Ethics and Discipline sets forth the rules of professional conduct and ethics concerning issues such as advertising, client relationships and legal fees. These regulations are also embodied in professional conduct codes enacted by the individual State Bar Associations. In Brazil, lawyers enjoy wide latitude to enter into fee arrangements with their clients, as long as they observe the more general rules of ethics and professional conduct. Legal fees can be agreed in the form of billable hours, flat fees and contingent or success fees. While there are a significant and growing number of international law firms that have established offices in Brazil, foreign lawyers are not authorized to practice Brazilian law. The Brazilian Bar Association authorizes foreign lawyers to act as consultants as to foreign law, as long as they are registered with the Brazilian Bar Association for this purpose. Many international firms have established offices in Brazil by entering into close affiliations with local Brazilian firms. Alliances between international and Brazilian firms have been subject to increasing scrutiny from Bar Associations, as Brazilian local firms argue that in some cases these alliances in practice serve to bypass the existing restrictions for foreign lawyers to practice law in Brazil. Portuguese qualified lawyers who are duly registered with the Portuguese Bar Association may register with the Brazilian Bar Association to practice law in Brazil, subject to certain conditions of reciprocity treatment agreed between the Portuguese and the Brazilian Bar Associations.5 2 Article 94 of the Brazilian Federal Constitution. 3 Articles 8 and 9 of Law No 8906 of July 4, 1994. 4 See http://www.oab.org.br (last visited on September 4, 2015). 5 Ruling (Provimento) No 129, of December 8, 2008 of the Brazilian Bar Association. 92 BRAZIL Demographics: Number of Lawyers per Capita; Number of Legal Aid Lawyers per Capita. According to the latest reports, in 2014, there were approximately 835,000 lawyers in Brazil (for a population of roughly 206 million people), and estimates indicate that by 2019 there will be 1,000,000 lawyers (for a population closer to 215 million), thus demonstrating an increasing rate of lawyers per capita.6 The number of law schools has also increased in the last decade, from 165 in 1995 to 1,284 in 2014. In 2014, according to the Brazilian Demographic Institute, the population of Brazil totaled 202,768,562 inhabitants. This would make the number of lawyers per capita in 2014 approximately 243. However, this number varies drastically depending on the region or State of Brazil. According to data published by the Brazilian Bar Association in 2008, the five States with the highest number of lawyers per capita were: the Federal District (140), Rio de Janeiro (154), São Paulo (203), Rio Grande do Sul (245) and Mato Grosso do Sul (327). The five States with the lowest number of lawyers per capita were: Amazonas (858), Bahia (859), Pará (883), Piauí (913) and Maranhão (1,337). The same 2008 data indicates that Brazil would rank as having the third highest number of lawyers in the world, behind the United States and India.7 LEGAL RESOURCES FOR INDIGENT PERSONS AND ENTITIES The Right to Legal Assistance In Civil Proceedings8 The Brazilian Constitution grants as fundamental rights the right to access to justice and the right to full and free legal assistance.9 These rights are granted in very broad terms, comprising assistance in relation to any type of legal dispute or litigation, before any type of court, as well as the provision of legal consultancy services, or assistance in conciliation procedures before litigation takes place. To attain these objectives and provide broad legal assistance to those who cannot afford it, the Constitution mandates the creation of Public Defender Offices at federal and state levels. 10 The obligation of the State to provide access to the courts and free legal advice to the public is also required pursuant to specific legislation concerning, for instance, consumer rights, labor unions and access to small claims courts. In Criminal Proceedings11 The same legal provisions described above regarding the right to legal assistance in civil proceedings apply to the right to legal assistance in criminal proceedings. 6 See http://blog.portalexamedeordem.com.br/blog/2014/11/futuro-da-advocacia-brasil-devera-ter-1-milhao-de- advogados-em-2018/ and http://www.worldometers.info/world-population/brazil-population/ (last visited on September 4, 2015).
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