The legal system regulates the onerous and food nature of the fees.
§14 of the art. 85 of the CPC/15: “The fees constitute a right of the lawyer and are of a nutritional nature, with the same privileges as the claims deriving from the labor legislation, compensation being prohibited in the event of a partial loss”. Along the same lines, the provisions of law no. 8.906/1994 (Statute of the OAB), in accordance with the provisions of articles 22, § 4 and 23.
It should be noted that even in the absence of a formal legal fee contract, in consideration of the mandate conferred and the legal action or the effective provision of services by the lawyer, art. 658 cc, which deals with the onerous nature of the mandate when the object corresponds to the exercise of a liberal profession by the representative, which includes the legal activity.
Certainly legal fees, whether arising from a contract or resulting from a court decision, serve the same purpose, namely the support and survival of the lawyer. In essence, there is no purposive difference between the amount resulting from the contract and that fixed in a judicial decision.
In fact, by virtue of the legal norms regulated in §14 of the art. 85 cpc and articles 22, § 4, and 23 of the Statute of the OAB, it is clear that both subordinate fees and agreed fees fall within the concept of maintenance allowance, considering that they constitute the lawyer’s fee, both privileged credit.
The legislator itself has not made any distinction regarding the origin of the liberal professional lawyer’s fees, i.e. both the secondary and the contractual fees are of a maintenance nature, since they represent funds deriving from the consideration of one’s legal activity or the price duly paid during the whole their performance, often time-consuming, through which the patron provides for himself and his family.
It should be noted that the Brazilian Bar Association, in the PSV 85/DF case, filed with the Federal Supreme Court, underlined the maintenance nature of the legal expenses included in the sentence and/or detached from the main amount of the sponsorship, the satisfaction of which it will take place with the issuance of a judicial provision or request for a modest amount, observing the appropriate provision reserved for credits of this nature.
In this sense it is worth recalling the position of the STF, which recognized the autonomous and food nature of the contractual fees, according to the thesis defined in RE 564.132, DJE 27 of 10-02-2015, Theme 18, that “The legal expenses included in the conviction or in the detachment of the principal sum due to the creditor constitute money of an alimony nature, the satisfaction of which will take place with the issuance of a precatório or a request for a small sum, observing a special order limited to credits of this nature”.
The Brazilian Supreme Court has been – at least since 1996 – establishing the food nature of precarious employment by referring to legal fees (Rcl 23.796, DJE 28 of 02-13-2017). Judge Roberto Barroso has already affirmed that “the autonomous character and the alimentary character are common to the subordinate compensations, through judicial and contractual arbitration” (RCL 26.259, DJE 01/06/2017).
In turn, Min. Fux decided that “the lawyer has the right to request, separately, the execution of the fees – a sum which is due to him and which has an alimony nature -, given the non-existence of the accessory with respect to the request principal and, also, the fact of being held by a creditor other than the owner of the principal sum” (Rcl 21.516, DJE 171 of 01/09/2015). Likewise, “has established an order of preference in the issue of precarious measures of a food nature, recognizing this nature also to the honorary sum to be paid by request, pursuant to art. 100, §§ 1 and 2, of CF/ 1988? (Rcl 30.833, DJE 153 of 8-1-2018).
Thus was born the previous binding n. 47 of the STF: “The legal expenses included in the sentence or detached from the principal sum owed to the creditor constitute a maintenance sum whose satisfaction will take place with the issuance of a precatório or a request for a small sum, observing a special order limited to credits of this nature”.
According to the cited jurisprudence of the STF, the question is based on two of the characteristics of the lawyer’s fee: (i) the autonomy of the claim with respect to that due to the sponsor, as it belongs to another owner; and (ii) the food nature of the plot.
However, recently, based on art. 100, paragraph 8, of the Tax Code, which prohibits the issuance of complementary or supplementary precatori of the amount paid, as well as the splitting, distribution or division of the value of the execution for the purposes of defining the RPV or precatório, established the STF the feasibility of applying the content of the Binding Declaration 47 to contractual payments (ARE 1374239, DJe-157 Issued on 08-08-2022; Rcl 47117 AgR, DJe-106, Issued on 06-02-2021; Rcl 45903, DJe -085 Released 2021-04-05; RE 1277593, DJe-258 Released 2020-10-26).
On this basis, in practice, the maintenance nature of the order issued with reference to the contractual expenses is inadmissible, being understood the impossibility for the lawyer of the winning party to receive the legal expenses deriving from the contract deriving from the secondment, regardless of the main claim, that is, the most recent decisions do not allow the issuance of the precatório for the payment of a contractual fee dissociated from the main claim to be requested.
Indeed, this jurisprudential turn or linguistic turn professes the maxim that the accessory would follow the principal and, therefore, the systematic sending of requested letters, with emphasis on the contractual fee amount, does not allow the issuance of different precarious, with emphasis on the contractual fees, they follow the fate of the credit originated by the winning customer.
Nothing is more wrong than this new understanding. The constitutional prohibition of splitting the value of the execution in order to frame RPV or precariousness, in itself, does not authorize the exemption from compliance with the legislation that establishes contractual compensations such as maintenance allowances, preferential in the payment order and privileged in bankruptcy, competition from creditors, civil insolvency and extrajudicial liquidation.
In terms of the law, the contractual fees do not constitute ancillary obligations and the sums received by the customer in the event of victory in the case do not constitute principal obligations for the purposes of compliance with the principle of legal gravitation, principal acessorium sequeatur, so that the contract The obligation of the customer to pay the lawyer has an autonomous and independent character with respect to the obligation of the public body to effectively pay the winner of the case, with the obligation of the settlor to pay the lawyer who contributed to the postulation of a favorable decision, and the patron can ask that the precatório, if necessary, be issued in your favor. In this direction, for example, even if there were no obligation on the part of the public body to pay the lawyer’s client or in cases of agreement between the client and the counterparty, there could be a contractual financial obligation with the lawyer to be fulfilled and the customer is required to observe it, except in the hypothesis of acquiescence of the liberal professional.
Therefore, the food nature of the contractual legal expenses expressly provided for by the legislation (§14 of article 85 of the CPC and articles 22, paragraph 4, and 23 of law n. 8.906/1994) is clearly violated and, if understood on the contrary, the courts must comply with the provisions of the binding precedent no. 10, in consideration of the plenary reservation (art. 97, CF), since the degradation of legal expenses would imply the removal of legitimate infra-constitutional norms, which would happen in a straightforward and unequivocal way to the detriment of the entire category of lawyers, going beyond the interests subjective aspects of the process, damaging the entire category.
Furthermore, the credits deriving from legal expenses are of an alimony nature and are equivalent to work credits for the purposes of qualifying for bankruptcy, as provided for by article 83, c. I, of the Law n. 11.101/2005, and prefers the tax credit pursuant to art. 186 of the CTN. In this sense, legal expenses follow the stipulation of a formal compensation and/or mandate contract, with delegation of powers of representation in court and possibility of collection according to specific provisions of the OAB Statute and of the CPC. In his role, the lawyer performs a social function, performs a public service and his acts constitute a public duty.
In the meantime, the professional activity of the lawyer has constitutional significance and topographically falls within the essential functions of justice (art. 133 CF), being indispensable to the administration of justice. The lawyer is, therefore, a professional with technical-specialist training who promotes the fundamental constitutional guarantee of access to justice, and not only that, the interpreter and executor of the law must protect the exercise of the law as an essential activity of the judicial system.
Therefore, it is understood that the binding precedent 47 of the STF does not prevent the deduction of contractual fees and, in the light of the provisions of § 14 of art. 85 cpc, it is clear and crystalline right of the plaintiff to have the application of the legislation recognized, in the sense of issuing precautionary deeds referring to contractual legal expenses with annotation of a food and, therefore, preferential nature.
Therefore, there is no constitutional or juridical impediment for the lawyer, holder of a precatório relating to legal expenses, to receive his share in a juridically distinct way from that of the client, thus being able to comply with the requirements of the art. 100, § 2, of the CF, receive the payment in a preferential way. Therefore, the fees constitute an autonomous and privileged right of the lawyer, allowing the submission to a rite other than the main one and the release of the precariousness of the highlighted value relating to the contractual fees, observing the specific order reserved for claims of a maintenance nature.
*Edvaldo Nilo de Almeida is a postdoctoral researcher in financial and tax law at the UERJ, a PhD in public law at the PUC-SP and a federal district attorney
Source: Terra
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