Published on Valor Econômico
Operation Car Wash has transformed the standards of criminal investigations in Brazil and brought a new generation of criminal defense attorneys into the spotlight, shifting attention away from the old guard, symbolized primarily by the names that dominated the “Mensalão” trial. These younger attorneys, aged between 30 and 40, often disdain being called “doctor” and adopt more pragmatic defense strategies. One notable distinction is their more open stance toward plea bargaining, a mechanism generally disfavored by the older generation.
The investigation into the Petrobras corruption scandal has led to an unprecedented wave of plea agreements in Brazilian justice. Since former Petrobras executive Paulo Roberto Costa initiated the process, over 60 agreements have been signed. This new reality has driven up-and-coming defense attorneys to mirror practices from other countries, particularly the United States, where plea bargaining has been a tradition for decades. Some of them are even pursuing specialized courses on the subject, albeit discreetly, to avoid embarrassing their clients. Others have formed study groups to analyze cases from institutions like the Administrative Council for Economic Defense (CADE), which has been handling leniency agreements since 2003.
One of the most prominent recent events in Operation Car Wash was a plea agreement orchestrated by attorney Fernanda Tórtima, 39. She brokered the deal between Sérgio Machado, former president of Transpetro, and the Office of the Prosecutor General, shielding her client from imminent imprisonment with what are considered highly advantageous terms. Machado’s revelations resulted in the resignations of two ministers in interim President Michel Temer’s administration and implicated Senate President Renan Calheiros (PMDB-AL), former President José Sarney, and several other politicians.
When discussing the matter, Fernanda reveals that opting for a plea deal is not always comfortable. “In principle, I’m against it. But at certain times, you simply have to fulfill your mandate [as defense counsel] and do what’s best for the client,” she says. With a potential whistleblower, she follows a specific playbook. “The most important thing is not to compromise on the truth, not to omit, not to distort. If this isn’t done, there’s a grave risk of losing everything.” Fernanda is also one of the attorneys handling the high-profile Lava-Jato case involving former Speaker of the House Eduardo Cunha (PMDB-RJ).
Cunha’s defense also includes two other young attorneys, Pedro Ivo Velloso, 32, and Ticiano Figueiredo, 33. They joined the case after the departure of former Attorney General Antonio Fernando de Souza, 67. Pedro Ivo and Ticiano studied together at the University of Brasília (UnB), pursued postgraduate studies in criminal law, and launched their own firm, Figueiredo e Velloso, in late 2014. Their Lava-Jato debut occurred early in the investigation but ended quickly when their clients decided to enter plea agreements.
Pedro Ivo previously worked at the office of criminal lawyer Antonio Carlos de Almeida Castro, known as Kakay, 58, who represented money changer Alberto Youssef in Brasília. When Youssef expressed interest in cooperating, Kakay withdrew from the case, and Pedro Ivo followed suit. “First, because he [Youssef] was going to implicate, as he did, 50 of my clients,” explains Kakay. “Second, because plea deals today often lack ethical principles. I see colleagues negotiating deals for individuals who implicate their own clients. That, I cannot condone. Yes, I’m ‘vintage.’” Kakay claims he is not opposed to plea agreements per se but criticizes what he calls “the excesses of Operation Car Wash.” He also argues that negotiating a plea deal is “much easier” than conducting a traditional defense. “It requires no intellectual effort; it’s like delivering a pizza. I even saw a video where, while the client was testifying, the attorney was doing her nails. For me, making a deal is the most painful thing there is.”
Ticiano’s journey mirrors Pedro Ivo’s. During the Mensalão trial, he worked with renowned criminal lawyer Antônio Cláudio Mariz de Oliveira, 70. Later, when Lava-Jato surfaced in 2014, Ticiano took on the defense of money changer Carlos Habib Chater. However, he withdrew from the case when his client opted for a plea deal, as he did not work with such arrangements at the time.
Pedro Ivo and Ticiano praise their mentors, crediting them with much of their expertise in criminal defense. Yet, when discussing agreements with the Public Prosecutor’s Office, they adopt a markedly different approach. “Plea bargaining is now part of the right to defense,” says Pedro Ivo. “And this changes everything. Those who don’t embrace it are swimming against the tide of modern criminal law,” adds Ticiano.
With eight clients involved in Lava-Jato, attorney Pierpaolo Cruz Bottini, 39, has established a study group at his firm, Bottini & Tamasauskas, to explore the American experience with plea bargaining and disciplines like negotiation analysis. “We’ve consulted extensively with specialists in competition law and CADE practitioners, given their experience with leniency agreements,” he says. For Pierpaolo, traditional criminal defense, centered on procedural and substantive arguments, remains the primary focus. However, lawyers must now be prepared to consider various types of agreements with the prosecution and other oversight bodies. Pierpaolo negotiated the plea agreement for Dalton Avancini, former president of Camargo Corrêa.
Rodrigo Mudrovitsch, 31, is another rising attorney with ten clients in Lava-Jato, including Workers’ Party senators Gleisi Hoffmann (PR), Humberto Costa (PE), and Lindbergh Farias (RJ), as well as former minister Paulo Bernardo, Gleisi’s husband. According to Rodrigo, new investigative techniques have necessitated changes in law firm structures. “We have consultants who analyze media, emails, and data. Whatever the Federal Police has, we must have too,” he says. Like his colleagues, Rodrigo sees no stigma in plea agreements. “If your client is factually cornered, you’ll need to explore alternatives. This will likely involve leniency or plea agreements. Lawyers who avoid them will be left out of the market.”
Other young attorneys who have gained prominence in Lava-Jato include Maíra Salomi, 32, representing former minister Edinho Silva and Mossack Fonseca; Fábio Tofic Simantob, 36, defending advertising executive João Santana; and Maurício Silva Leite, 40, working with former senator Delcídio do Amaral (PT-MS).
The military dictatorship (1964–1985) might partially explain the contrasting views between the older and younger generations on whistleblowing. For those who lived through the regime, whistleblowing carried strong ideological negative connotations. For the younger generation, denouncing a criminal organization partially sheds this stigma, opening space for truth-seeking and the whistleblower’s reconciliation with societal values.
The younger generation’s stance is also shaped by the trauma of the Mensalão case, where many of the country’s top lawyers suffered crushing defeats. The harsh sentencing of businessman Marcos Valério served as a cautionary tale. Many attribute Paulo Roberto Costa’s decision to initiate the devastating Lava-Jato plea deals to the “Marcos Valério effect.” This, coupled with the fact that plea bargaining was only codified in Brazil in 2013 through the Organized Crime Act, has changed the landscape.
According to retired Superior Court of Justice minister Eliana Calmon, the shift in defense strategies began after Mensalão. She explains that many attorneys previously created procedural obstacles to shield clients, but the strategy was disastrous. “Advocacy today is far more technical, as procedural nullity arguments no longer hold water,” she observes. She also notes that the Supreme Court has changed, and personal connections are no longer enough to secure success. “Before, a case would have four or five attorneys, each with influence over specific judges. That doesn’t work in Lava-Jato anymore.”
Published on Valor Econômico