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After evaluating the efforts, TJ/GO sets fees of R$50 thousand in a million-dollar case

The panel understood that the value would be fair given the effort made by the lawyer in the case.

From the Editors

 

Tuesday, July 2, 2024

 

Updated at 09:08

 

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Last Thursday, the 27th, the 11th Civil Chamber of the TJ/GO, in a partially accepted pre-execution exception action, decided to set fees based on equity at R$50 thousand in a case with an updated value of R$57 million, representing approximately 0.0877%. The panel understood that the amount would be fair given the effort made by the lawyer in the case.

 

The rapporteur, judge , initially suggested setting the value at R$30,000.

 

Considering the already settled precedents of the STJ, and also understanding the relevance of this case, of the discussion that is taking place in the Superior Courts regarding the sentences against the Public Treasury for high fees, there is no denying that R$88 thousand, plus monetary updates, is a considerable amount. And here, I am in no way disregarding the work of the honorable lawyer, his competence, the work he carried out, his studies, and that he sought a victory for his client. So, this must be truly rewarded and recognized by the courts and by us here. I am therefore, based on this, arbitrating that the fees for the losing party be set based on equity.

 

Then, judge Paulo César das Neves agreed.

 

"I did a rough calculation of the value of the execution of R$18 million, filed on September 27, 2017, updating with the interest of 1%, simple interest, today it would be in the range of R$57 million reais. So, applying either 1 or 6%, I believe it will be difficult."

 

And he added:

 

I believe that lawyers should be well paid for their work, but if we had an ordinary action with expert evidence, testimonials, rebuttal reasons, a matter that is difficult to elucidate and in which the lawyer had really demonstrated hard and fruitful work over the years, perhaps that would be the case. Perhaps. But, in a case of a pre-execution exception with the underlying issue being an exclusion due to a declaration of constitutionality by the Supreme Court, I cannot help but agree with the rapporteur in its entirety, including the amount, which I believe was quite good.

 

When opening a dissenting opinion, Judge Antônio  proposed increasing the amount to R$50,000, which, in his view, would be a more acceptable amount for the lawyer's work. Paulo César das Neves refuted Antônio César  argument and insisted once again on setting the amount at R$30,000.

 

We do not want to discredit the lawyer's work. But R$30,000 is well remunerated. It is an amount consistent with the work of the law firm. We have to see the extent of what he did: a pre-execution exception. Did it produce results? It did. But what was the nature of the work presented? Just one piece.

 

The rapporteur then accepted the suggestion to set it at R$50,000, considering it a "reasonable" amount.

 

Therefore, considering the work carried out by the honorable attorney for the aggrieved party and in compliance with the parameters established by § 8 of art. 85 of the Code of Civil Procedure, it is reasonable that the fees be awarded in equity in the amount of R$50,000.00 (fifty thousand reais). This amount remunerates the lawyer fairly for the work effectively performed, without generating illicit enrichment to the detriment of the appellant.

 

 

Fee dispute

 

In 2022, the Special Court of the STJ concluded the judgment of Theme 1,076 of the repetitive appeals and, by majority, decided that it was not feasible to set attorney's fees through equitable assessment when the value of the sentence or the economic benefit is high.

 

The rapporteur of the appeals submitted for judgment, Minister  Fernandes, established two theses on the subject:

 

1) The determination of fees by equitable assessment is not permitted when the amounts of the judgment or the case, or the economic benefit of the lawsuit, are high. In such cases, it is mandatory to observe the percentages provided for in paragraphs 2 or 3 of article 85 of the Code of Civil Procedure (CPC) - depending on the presence of the Public Treasury in the dispute -, which will subsequently be calculated on the amount: (a) of the judgment; or (b) of the economic benefit obtained; or (c) of the updated value of the case.

 

2) The arbitration of fees based on equity is only permitted when, whether or not there is a ruling: (a) the economic benefit obtained by the winner is inestimable or insignificant; or (b) the value of the case is very low.

 

Fernandes was supported by the majority of the ministers who participated in the trial. Minister Nancy Andrighi initiated the dissent, understanding that the text of the CPC could not be interpreted literally, and that in certain cases an excessively high sentence could constitute unjust enrichment, in which she was supported by ministers Laurita 

 

In his vote, the rapporteur explained that the 2015 CPC brought more objectivity to the hypotheses for setting fees and that the rule of fees based on equity, provided for in paragraph 8 of article 85, was designed for exceptional situations in which, whether or not there is a conviction, the economic benefit of the lawsuit is insignificant or inestimable, or the value of the case is very low.

 

By the way, when paragraph 8 of article 85 mentions 'inestimable' economic benefit, it clearly refers to those cases in which it is not possible to attribute a patrimonial value to the dispute (as can occur in environmental lawsuits or family actions, for example). 'Inestimable value' should not be confused with 'high value , stated Fernandes.

 

In November 2022, the Union took the case to the STF, defending the possibility of setting fees based on equity in high-value cases in which the Treasury is a party.

 

After Cristiano vote breaking the tie, the Court recognized that there is general repercussion and a constitutional issue in the Union's appeal in favor of equitable fees. The appeal was admitted and awaits entry into the agenda.

 

 link: https://www.migalhas.com.br/quentes/410470/tj-go-fixa-honorarios-de-r-50-mil-em-causa-de-r-57-milhoes