The Supreme Court Judge, Alexandre de Moraes, considered the possibility of gathering enough resources until the end of the process 

By Adriana Aguiar – From São Paulo Valor Econômico, June 19, 2023 

 The Judge Alexandre de Moraes, of the Federal Supreme Court (STF), determined that a beneficiary of free justice must pay the so-called sucumbency fees – collected from the opposing party’s lawyer. The understanding, in a first complaint on the subject, was that the second instance did not comply with the decision of the STF. 

 The positioning of the ministers, according to experts, can correct routes. This is because, after the Supreme Court’s judgment on the issue, labor judges automatically started to veto the collection of fees from those who are entitled to the gratuity. 

 In the case, Moraes ordered the Regional Labor Court of Minas Gerais (TRT-MG) to reverse the decision and formulate a new one, in accordance with the judgment of the STF (Rcl 60.142). 

 In October 2021, the Justices judged ADI 5766, proposed by the Attorney General’s Office (PGR), which questioned the payment of contingency fees by beneficiaries of free justice, imposed by the labor reform (Law 13,467). By majority vote, they declared unconstitutional paragraph 4 and caption of article 790-B and paragraph 4 of article 791-A of the Consolidation of Labor Laws (CLT). 

 These provisions said that the beneficiary of free justice, provided that he or she has not obtained in court, even in another proceeding, credits capable of supporting the expense, will have the payment of defeat fees suspended. And they can only be enforced if, within two years of the end of the action, the creditor demonstrates that the situation of insufficient funds no longer exists. 

However, after the publication of the full text of the judgment, it became clear that only part of article 791-A was considered unconstitutional: “provided that he has not obtained in court, even in another proceeding, credits capable of supporting the expense. In practice, there could be no automatic deduction of what the worker received in the lawsuit or in another action for the payment of fees. 

 The payment of defeat fees for beneficiaries of free justice was maintained, “provided that they cease to be poor after the end of the process, within a period of two years. 

 For the lawyers who filed the complaint, Caio Madureira and Rodrigo Macedo, from Tortoro, Madureira e Ragazzi Sociedade de Advogados, the decision is important because many judges of first and second instance had understood that the Supreme Court had declared unconstitutional any collection of fees for beneficiaries of free justice. “Judges have repeatedly adopted a mistaken interpretation,” says Madureira. 

 The law firm, in this case, appealed to the Supreme Court against a decision of the 7th Panel of the TRT-MG (Labor Court of Labor of the State of Minas Gerais), which did not award fees for defeat in a lawsuit between a bank and a former employee. She was asking for disregard of her position of trust, overtime, intra-day break, bonuses, and PLR, among others. 

 Since the lawsuit involves millions of reais, it can generate a significant amount of defeat fees. Since 2017, with the labor reform, the worker is now subject to having to pay from 5% to 15% on the sums not granted by the Justice (article 791-B). 

 In analyzing the complaint, the Judge Alexandre de Moraes stated that, in the Court’s judgment in October 2021, the unconstitutionality of provisions of Law No. 13,467 of 2017 was declared, “recognizing the legitimate responsibility of the beneficiary for the payment of burdens of sucumbency in specific situations.” As he explains, should he gather sufficient resources at the end of the process. 

 For the Judge, the Court “prohibited was the automatic removal of the condition of low status of the party as a logical consequence of obtaining amounts in court, and not the possibility of an award of attorney’s fees (which can be arbitrated, being under a suspensive condition of enforceability)”. 

According to Caio Madureira, although Moraes’ decision is only valid for the parties involved, it makes it clear that the Supreme Court has not, at any time, forbidden the payment of defeat fees by beneficiaries of free justice. 

 Rodrigo Macedo also highlights that the payment forecast, instituted with the labor reform, moralized the Labor Court. “This discourages rampant litigation,” he says. 

 The lawyer Maurício Pessoa, from Pessoa Advogados, believes that the decision makes it clear that these fees can be charged, provided that it is proven in the process that the condition of low income is no longer present.For this, one can present evidence of amounts received in the lawsuit or in others, or request for income tax returns and photos in social networks, which prove a standard of living incompatible with the condition of low income. 

 In the opinion of PUC-SP professor and labor lawyer Fabíola Marques, from Abud Marques Sociedade de Advogadas, a beneficiary of free justice should not be charged for any costs, expertise or fees.For her, winning significant amounts in one lawsuit or another doesn’t show that one is no longer poor, because one may have debts to pay. 

 According to the lawyer José Eymard Loguercio, from LBS Advogadas e Advogados, who advised the Central Workers Union (CUT) in the STF judgment, when the ruling was published this issue became contradictory. So much so that the Attorney General’s Office has filed a declaratory motion. “Although they were rejected, the rapporteur clarified the minor extent of the declaration of unconstitutionality,” he says. 

The position of the Supreme Court, says Loguercio, even if it has mitigated the most deleterious effects of the reform, is not compatible with a Labor Court that has the objective of examining cases of workers who, in general, seek parcels, even if controversial, of a salary nature. “The particularity of the Labor Court is that it handles cases of people who have lost their jobs,” he says.