Felipe de Santa Cruz Oliveira Scaletsky is President of the Federal Council of the Brazilian Bar Association (OAB) for the 2019-2021 triennial. Mr. Santa Cruz is a former two-term president of the Rio de Janeiro State branch of the OAB, serving between 2013 and 2018. He holds a bachelor of laws from Pontifícia Universidade Católica do Rio de Janeiro (PUC-RJ) as well as a master’s in law and sociology from Universidade Federal Fluminense (UFF). In this exclusive interview, President Santa Cruz discusses his main objectives, the social costs of Brazil’s economic reforms, the promotion of diversity in the legal market as well as international cooperation agreements between domestic and foreign law firms, amongst many other issues.
Leaders League. What are your main objectives as President of the Federal Council of the Brazilian Bar Association (OAB) for the 2019-2021 triennial?
Felipe Santa Cruz. The Brazilian Bar Association has historically had two pillars of action: the defense of democracy and the democratic State governed by the rule of law and the defense of advocacy. These are quite challenging times, and therefore, from the very beginning of my mandate, we outlined some key objectives.
First of all is the defense of attorney’s prerogatives. When democracy is threatened, the right to legal defense and constitutional guarantees, such as attorney-client privilege, are also placed under threat. In this regard, we registered an expressive victory by including an article in the Abuse of Authority Law which criminalizes violating the prerogatives of an attorney. These rights are guarantees for each citizen and form the basis of a democratic State.
On another front, in 2019, the OAB was forced to expand its role in the defense of civil society. With attacks to human rights, the environment, setbacks to public policies tackling racism and sexism and threats to press freedom as well as free speech, we entered the fray to support the coming together of civil society’s entities and organizations. In May of 2019, we launched the National Observatory for Freedom of the Press and Expression and supported, via legal assistance, entities from several sectors such as universities, thus playing our part in the defense of human rights.
Our administration is also focused on participating in discussions regarding legal certainty. Advocacy is a private profession which depends on the economic vigor of a country to thrive and grow. In this sense, the fulfilment of contracts and the improvement of the business environment are of direct interest both to the country and to advocacy. As an association, I believe our results have been positive. In a study published last December, conducted by Fundação Getulio Vargas (FGV) on behalf of the Brazilian Association of Magistrates (AMB), the OAB was listed with a 66% approval rating by Brazilians, which was the highest approval rating of any organization. The research also pointed out that, within the legal system, lawyers are the professionals which enjoy the highest approval ratings.
Bearing in mind Brazil’s recent labor and social security reforms and the subsequent ‘financialization’ of law – a term you cited in an interview given to Conjur in May 2019 – what is the role of the OAB, today, and how should it behave in this new context?
At the time, I remember answering a question on whether this is the era of ‘the end of rights’. In no way can a lawyer support the suppression of rights. It is contrary to the very existence of advocacy and threatens the minimum level of social peace required for society to develop and remain clear of barbarism. One of the constitutional roles of the OAB is to defend democracy. This includes resisting backward and anti-civilizatory initiatives. It includes defending the Constitution. No debate, on any reform, can exclusively consider fiscal or financial issues. These are, evidently, important but must always be accompanied by a debate on the social cost of the options we make as a society, namely, the protection of the poorest and most vulnerable. This is the role of the Association.
How has the OAB worked to guarantee fundamental rights under your administration?
Whilst receiving the OAB license and beginning life in advocacy, an oath is made by Brazilian lawyers to defend the Constitution, the democratic State governed by the rule of law and human rights. The OAB works, and worked throughout 2019, to assert this oath.
We went to the United Nations to fight the government’s proposal of ‘celebrating’ the 1964 [military] coup, in a clear affront to democracy. As soon as I took office, the Association established an Observatory for the Freedom of the Press, another constitutional guarantee which has been under threat. We have also been active, at the behest of deans, in ensuring the autonomy of universities, including via the filing of a Direct Unconstitutionality Action (ADI) before the Supreme Federal Court (STF), against the presidential decree which determined the extinction of 11.261 positions at federal education institutions, with the objective of rendering the level of excellence at these institutions unviable. Moreover, we successfully guaranteed, before the STF, the reception of a Declaratory Action for Constitutionality (ADC) filed by the Association, defending imprisonment only after res judicata, as foreseen in the Constitution, thus guaranteeing a citizen’s full right to defense.
How has OAB worked towards the promotion of greater diversity and inclusion in the Brazilian legal market?
The profile of the legal profession and its practitioners has undergone profound transformations. Many of the changes, to my understanding, are positive. One example: Today, half of those registered at the Brazilian Bar Association are women. This reality must now be reflected in our organization. At our next National Conference, it will be compulsory for every panel to be 50% female. This situation must also translate into new policies at our courts. The OAB defends, for example, that during oral arguments and court hearings, preference be granted to lactating and pregnant female lawyers; as well as the suspension of procedural deadlines for 30 days, counted from birth or adoption, when a mother is the only attorney sponsoring a case. Concrete measures are required to enable the full participation of women in the legal market, to achieve minimum conditions of gender equity.
Likewise, we have focused on the youth of advocacy. For the attorney fresh out of law school and, as is mostly the case, who does not immediately find the support of a law firm, the OAB has heavily invested in offices, in the form of co-working spaces, in which young lawyers can have access to an infrastructure of computers, printers, a collective office in which to develop work, without fretting about overheads, for example, which would render their first steps in law economically unviable. Some of these offices receive upwards of one thousand lawyers a day.
What is OAB’s current position on cooperation agreements signed between Brazilian and international law firms? How does the Association see potential free-market competition between domestic and foreign firms?
Brazil currently has a large legal services market. There are over 1.2 million attorneys registered at the Association, handling around R$50 billion each year. It is a sector which is growing around 20% annually. In 1990, Brazilian law firms worked in 10 practice areas. Today, they are active in 48. With the celebration of new commercial agreements, such as that of Mercosul with the European Union, these services should become more exposed to international competition. Within such an agreement, a countless number of legal issues and norms will be drafted thus harmonizing regulatory and tax issues as well as the movement of goods, peoples and workers. New intellectual property norms and environmental regulation requirements too, for example. Advocacy and its representatives must be prepared to fulfill these new demands and work towards ensuring the legal certainty of the new contracts which will surely arise.
On the other hand, much remains unclear regarding how the opening of the services market – including legal services – will be performed: under which conditions and time frame, with what type of deregulation and with which concrete consequences for the legal market itself. All of this will require debate, consensus building and cooperation to defend advocacy and the quality of legal services offered to society.
After the Supreme Court revised its interpretation of imprisonment after the second instance for the third time in 10 years, some critics have suggested Brazil is experiencing a period of legal uncertainty. Do you agree?
What upholds legal certainty is fulfilling the Constitution. In this regard, the Supreme Court’s decision was correct and was an important sign. I believe Justice Rosa Weber was absolutely right when she stated that the Supreme Federal Court is the guardian of the constitutional text, not its author. The Constitution expressly states that res judicata is the final term which guarantees the presumption of innocence.