Reclaiming the Lawyer as a Public Agent

Brazil’s 1988 Federal Constitution, in Article 133, clearly describes the lawyer as “indispensable to the administration of justice, and inviolable for their acts and statements in the exercise of the profession, within the limits of the law.” That means the lawyer is also a public agent, like judges and prosecutors. Lawyers are therefore essential to the balance between the rights and duties of citizens, and in their dealings with the State.

It is troubling, however, that these principles seem forgotten by society and are disregarded, among other cases, by a share of judges who insist on disrespecting lawyers, refusing even to meet with them in chambers about pending motions, as the law requires. Court clerks’ offices cannot treat lawyers as if they were being bothered while doing a great favor, when in fact they are performing a duty. There should be no obstacles to lawyers visiting and speaking with clients held in jails and police stations, or to consulting public data and information at government offices.

All of these problems are a clear symptom of a lack of institutional and professional representation for lawyers. In other words, the OAB, most visibly in São Paulo, is not fulfilling one of its main missions. For years it has seemed more concerned with partisan politics than with defending the profession. The vacuum in effective support for the profession, however, is broader and more serious.

One specific example of this neglect is the absence of any voice or action from OAB-SP in support of lawyers during the Covid-19 pandemic. It offered no help to ease the difficulties of professionals who lost their jobs or had to close their offices because of the crisis. Left with only the “charity stipend” paid for court-appointed legal aid, many face serious hardship.

Moreover, lawyers cannot use, as professionals in so many other fields do, some contemporary ways of promoting their work, such as social media, because they run up against the advertising limits in the OAB’s Code of Ethics and Discipline, which is outdated on this point. The world has changed, and society has gone through many transformations, as has the legal profession. The body that represents the profession, therefore, cannot stay in the past. It needs to evolve, including to do right by the profession in the most literal sense, since other, costlier means of advertising are in use that not everyone can afford, especially those just starting out.

Today, far removed from the reality and aspirations of the profession, OAB-SP has become exclusionary toward lawyers and ineffective in defending them. Its transformation is therefore urgent: it must become nonpartisan and devoted exclusively to the profession, above personal, group, and political interests, so that the legal profession can offer the best of its services to society. It is also necessary to unlock the profession through bills that open up the job market.