Liability of public attorneys

The constitutional principle governing the liability of public agents – including public lawyers, for their opinions or consultations – is the republican one, which shapes their liability for actions and omissions carried out in the public sector. It is no coincidence that art. 37, paragraph 6, of the Constitution establishes that public agents may be held liable for intent or negligence, for actions or omissions, in recourse actions, in the area of civil liability. Currently, the LINDB, in its art. 28, reinforces liability for intent or gross error by public agents, which affects the category of public lawyers.

The constitutional provision of art. 37, paragraph 6, established a minimum liability for intentional and negligent acts of public agents, in matters of civil liability, affecting all categories of national public agents. That being so, it is not possible to reduce civil liability to the spectrum of intentional or fraudulent conduct alone, as art. 184 of the CPC intends with respect to public lawyers. Indeed, the OAB Statute speaks of liability for the lawyer’s intent or fault, by reason of wrongful acts committed, and, by constitutional force, a reduction to the spectrum of merely intentional activities is not admitted.

Likewise, Law 8,429/92 provides for liability for intent or negligence, and in this case it is understood that the category covered is gross negligence or gross error, the same understanding applying to the field of Law 12,846/13 (Medina Osório, Fábio. Teoria da Improbidade Administrativa, ed. RT, 5th ed., 2020).

Evidently, civil, administrative or criminal liability can be assessed in accordance with the democratic principle. Under this principle, there is free legislative shaping of offenses and penalties. The very grading of fault, in this context, falls within the legislator's prerogative, depending on whether one sphere or another, a special class of public agents or offenses is involved.

Thus, with regard to public lawyers, in symmetry with magistrates and members of the Public Prosecution Service, civil liability has been recognized only in cases of gross error (gross negligence) or intent. Likewise, it may be argued that this premise applies to the field of administrative liability before the courts of accounts and to administrative improbity (administrative sanctioning law) or corporate improbity. This is the guidance of the TCU and the STF on the matter (MS 24,631, rapporteur Justice Joaquim Barbosa, judged 9-8-2007, P, DJ of 1-2-2008].

The constitutionally provided modulation of fault is possible. However, remember that in the disciplinary sphere this calibration does not exist, insofar as ordinary fault is admitted for certain minor infractions. That is, administrative sanctioning law – of which disciplinary law is a species – will not always require gross fault for the purpose of holding public agents liable.

The public attorney, however, cannot be held liable when interpreting the legal system reasonably, within his evaluative margins, exercising freedom of interpretation. “The diversity of possible interpretations in the face of one and the same framework underpins the constitutional guarantee of the inviolability of the lawyer. The analysis of the content of lawyers' statements must be relativized. Even if a different understanding prevails in the oversight body, the lawyer is free to express himself on the basis of other legal sources and arguments” (STF, MS 35,196, Rapporteur Justice Luiz Fux, judged on 12.11.19). Note that the public attorney has a constitutional prerogative to interpret the legal system with evaluative freedom, in the same mold as the judge and the member of the Public Prosecution Service, since it is a function essential to justice.

It must also be noted that the liability of the public lawyer must be placed within the structure of administrative sanctioning law or of due process restricting individual rights. In any case, the prohibition of arbitrariness by the Public Authorities, respect for human dignity, reasonableness, proportionality, the causal link and subjective liability are ensured. A possible divergence between the views of the overseer and of the public lawyer should not necessarily culminate in the lawyer’s liability, on pain of creating a hermeneutic offense.

In sanctioning matters, as in administrative improbity actions, it is necessary to analyze legal typicality and the appropriate causal link, as well as the agent’s culpability and any exclusions of the offense, of fault and of unlawfulness.

Public lawyers, like other public agents, have the so-called right to legally tolerable error. This error, as is known, extends to various professional classes. Judges, members of the Public Prosecution Service, physicians, among others, are entitled to legally tolerable margins of error. Ignoring this premise would amount to leading to the paralysis of these professions, with serious social and economic setbacks.

Fábio Medina Osório

Lawyer at the firm Medina Osório Advogados, former AGU minister.