Interview published in Issue #6 of the Bulletin of the Criminal Lawyers Society of the State of Rio de Janeiro (Sacerj)
Sergio Fernando Moro, former Federal Judge responsible for the “Operation Car Wash” cases in Curitiba and former Minister of Justice and Public Security under the far-right Bolsonaro administration, after resigning from his judicial duties and stepping down as a politician, publicly declared his desire to join the ranks of the Brazilian Bar Association (OAB).
However, in considering whether his application to this competitive guild will be approved, it is worth recalling that, as a judge, Moro was involved in a series of actions disrespectful to lawyers representing cases under his jurisdiction. For instance, he referred to the defense’s protests against violations of professional rights as a “defense show,” as revealed by The Intercept[1]. Criminal lawyers still remember the heated clash between the former judge and our associate, attorney and professor Juarez Cirino dos Santos[2].
It should also be remembered that, as Minister of Justice, Moro vetoed provisions in the original text of the Abuse of Authority Law, approved by Congress, that imposed sanctions for violations of lawyers’ professional rights.
The Advocacy Statute establishes that applicants for admission to the OAB must demonstrate moral integrity. The statute also allows the competent council to assess this requirement, enabling the rapporteur of the application to investigate, in advance, the terms and status of any grievances filed against the applicant or disciplinary actions, either with the OAB or with the oversight bodies of the courts where the applicant served as a magistrate, as well as whether the applicant has been involved in any disgraceful criminal activity.
Despite Moro’s unfavorable record and the speculation that the former judge might not respect the profession even after becoming a lawyer, it is highly likely that his application will be approved.
On this topic, which has sparked debate within SACERJ’s WhatsApp group during the isolation period, the Bulletin interviewed attorney Fernanda Tórtima, former President of the Assistance and Prerogatives Commission of the Rio de Janeiro Bar Association (OAB/RJ) from 2010 to 2012 under President Wadih Damous, and for part of the 2013-2015 term (until October 2014), under the presidency of Felipe Santa Cruz.
Question: Some actions taken by Mr. Moro while serving as a judge prompted requests for grievances from lawyers whose professional prerogatives were violated by him. Additionally, during his tenure as Minister, he supported vetoing three provisions of the Abuse of Authority Law that guaranteed important prerogatives for the practice of law, especially in criminal defense (Articles 20, 32, and 43 of the original text[3]).
Given your experience on the subject, could these circumstances be considered detrimental to the moral integrity required for the practice of law and thus impede the approval of the former judge’s application to join the OAB, under Article 8, subsection VI, § 3, of the Advocacy Statute?
Answer: I have always argued that actions taken by public officials that violate lawyers’ professional prerogatives should, in some way, have consequences when these individuals—especially judges, prosecutors, and police officers—leave their positions and apply for admission to the Bar. However, we must first be very careful with the procedures and ensure the rights of those involved.
Before imposing restrictions on anyone’s professional practice, regardless of their conduct, I believe legislative changes are necessary. For example, it could be considered to include a provision in Law 8.906/94 expanding the list of actions that characterize a lack of moral integrity. One possibility would be to regard repeated actions leading to public grievances as grounds for denying admission. Another would be to consider instances where the public official was the subject of multiple disciplinary complaints filed by the Bar Association. Perhaps this would encourage those public officials who routinely violate lawyers’ prerogatives—which I believe are a minority—to think more carefully about their actions.
On the other hand, it would be necessary to improve the procedure that leads to grievances in favor of lawyers or the filing of disciplinary complaints by the Bar. This would ensure the alleged offending authority has the right to a robust defense, considering that granting grievances and complaints would have serious, direct effects on their right to professional practice. It would also be necessary to set a reasonable time limit for such restrictions on professional practice. The idea is not to seek revenge or to permanently prevent someone from practicing law but rather to ensure there are consequences for public officials’ actions.
Regarding Mr. Sergio Moro’s case, there are some peculiarities. Firstly, I believe other judges violate prerogatives far more frequently than the former judge in question. In my opinion, the illegalities he allegedly committed were more about violating the rights of the accused or investigated individuals than lawyers’ rights. Many of these decisions, which I consider illegal, were upheld by higher courts. However, I do recall a particularly serious violation of lawyers’ professional prerogatives committed by Mr. Moro. He issued a decision allowing the lifting of confidentiality on conversations between inmates at the Catanduvas prison and their visitors, including lawyers, regardless of whether the lawyer was under investigation. Interestingly, despite efforts by the then Secretary-General of the OAB/PR, Juliano Breda, and the Federal Bar Council, this decision was never overturned by any higher court. This suggests he was not solely responsible.
As for his support for vetoing parts of the Abuse of Authority Law, I do not see this as a violation of professional prerogatives, much less as grounds for denying his admission. It is possible to oppose the Abuse of Authority Law or specific provisions, like those mentioned in your question, for various reasons, not necessarily because one supports violations of lawyers’ rights. For example, a judge at the Rio de Janeiro Court of Justice, known for his guarantees-based approach and respect for defendants’ and lawyers’ rights, harshly criticized the law, arguing that it represents emergency and ineffective legislation. While Mr. Moro’s motivation may differ, it cannot be assumed that opposing a law indicates a lack of moral integrity.
Question: Could the approval of the application of former Supreme Court Justice Joaquim Barbosa, who also faced severe criticism for his disregard of lawyers’ professional prerogatives, serve as a precedent for Mr. Moro?
Answer: I don’t think a precedent is necessary to approve Mr. Moro’s application. As I mentioned earlier, without legislative changes, denying admission in such cases would be illegal.
That said, to my recollection, while serving as a Supreme Court Justice, Joaquim Barbosa repeatedly refused to meet with lawyers. This, admittedly, is not an uncommon practice in various courts. It only gained prominence in his case due to the visibility of his position and because he openly declared his refusal, whereas many others impose tacit barriers. There were also some more severe episodes in his case, to the best of my memory, that might have justified denying his admission. However, this would depend on whether he had been given the opportunity to act differently, fully aware of the consequences of his actions. After all, an act can only be sanctioned if committed after the enactment of a law defining the conduct and corresponding penalty.
Finally, it’s worth considering whether legislative changes are still necessary given the enactment of the Abuse of Authority Law. Convictions under Articles 20 and 32 of Law 13.869 or the newly added Article 7-B to Law 8.906/94 may already lead to the denial of admission, depending on whether these offenses are considered disgraceful. If so, it’s worth debating whether the Bar Association’s residual authority to deny admission remains necessary. If the answer is yes, as I’ve said, this must be done legally and constitutionally.
[2] https://www.youtube.com/watch?v=fpwLHfbWniw
[3]Article 20: Preventing, without justification, a detainee’s private and confidential meeting with their lawyer: Penalty – detention of six months to two years, plus a fine.
Article 32: Denying access to case files of preliminary investigations, among others, to the interested party or their lawyer: Penalty – detention of six months to two years, plus a fine.
Article 7-B: Constitutes a crime to violate lawyers’ rights or prerogatives as provided in specific subsections: Penalty – detention of three months to one year, plus a fine.
Interview published in Issue #6 of the Bulletin of the Criminal Lawyers Society of the State of Rio de Janeiro (Sacerj)