Prosecutor says that imposing OAB price tables violates free competition

The imposition of price lists for legal fees by the Federal Council of the Brazilian Bar Association violates free competition and the economic order. This is the understanding of the Federal Public Ministry together with the Administrative Council for Economic Defense (Cade). The Prosecutor's statement was presented in a process that investigates the practice of 'anti-competitive conduct' by the OAB Council.

In the document, the regional prosecutor of the Republic Waldir Alves, who works with Cade, defends the condemnation of the Federal Council of the OAB for the practice of 'influencing the adoption of uniform conduct among competitors'.

The prosecutor requests the opening of administrative proceedings against the subsections of the OAB that 'have already punished or continue to initiate procedures aimed at punishing lawyers who do not follow the fee tables imposed by the Federal Council'.

The information was released by the Social Communication Secretariat of the Attorney General's Office.

Wanted by Estadãothe OAB stated that it has the authority, regulated by law, to edit the fee schedule and that this is an instrument to ensure minimum remuneration for lawyers.

For Waldir Alves, legal services can be compared to services provided by professionals from other areas, such as doctors, engineers, mechanics, and, therefore, 'they must also take into account the needs and satisfaction of the person who hires them'.

He highlights that 'the economic logic of a lawyer's services is not distinguished from that of other types of service providers'. “Therefore, supported by the Constitution and according to its economic order, the market system, free enterprise and free competition must be respected so that there is free contracting between the client and the lawyer service provider”, he explains.

Waldir Alves maintains that the existence of minimum values ​​in the fee table, not indicatively, but imposingly and with the provision of punishment for lawyers who do not observe them, removes all possibility of negotiation between lawyers and clients.

According to the prosecutor, 'the mere influence and use of such agreed parameters and under the guidance of the Federal Council would be enough to constitute the practice of an illegal competition insofar as they involve the standardization of competitors' prices'.

Waldir Alves points out that the practice adopted by the Federal Council of the Order of 'imposing anti-competitive conduct on its members violates several normative instruments, resulting in an ethical-disciplinary infraction'.

According to him, the imposition of fee tables violates precepts of the General Regulations of the Statute of Lawyers of Brazil and the Codes of Ethics and Discipline of the OAB, of 1995 and 2015, respectively.

The attorney who works with Cade cites in his opinion the violation of the Law Statute (Law 8,906/1994) and the Antitrust Law (Law 12,529/2011).

Understand the case

The initiation of an administrative proceeding, in 2010, by the former Secretariat of Economic Law of the Ministry of Justice, initiated the case that investigates the practice of possible anti-competitive conduct by the Federal Council of the OAB, based on representation from the Public Ministry of the State of Minas .

According to the representation, the class entity 'imposes minimum values ​​set out in fee tables to be followed by lawyers'.

Throughout the investigation, the OAB Council 'did not deny the existence of the aforementioned fee tables, but claimed that the document would only be informative, based on current legislation, with compliance being considered an ethical duty'. However, according to the MPF, based on documents attached to the process, the table supports and influences the administrative punishment of lawyers who did not follow the values ​​contained in the tables, 'abusing their legal power and violating the constitutional principle of free competition' .

WITH THE WORD, THE OAB

“The OAB acts to demonstrate to the plenary of the Administrative Council for Economic Defense (Cade) the non-existence of an infraction in relation to the matter. Law 8,906/94, which establishes the Law Statute, is clear in defining the OAB sections as competent institutions to edit the fee table, a legal instrument that ensures minimum remuneration to lawyers for the provision of legal services and for the fulfillment of its essential function of Justice, which is established by the Constitution.”