TRF1 understands that a law graduate who is a conciliator cannot act in the Special Court

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The 8th Panel of the Federal Regional Court of the 1st Region (TRF1) maintained the sentence that granted the security requested by a law graduate to annul the administrative act of the Brazilian Bar Association – Mato Grosso Section (OAB/MT) that rejected his application for professional registration under the justification of incompatibility of the activity of judicial conciliator with the practice of law.

The Brazilian Bar Association – Mato Grosso Section (OAB/MT) argued that the sentence is in disagreement with current legislation, arguing that those who have links with the Judiciary are incompatible with the legal profession regardless of their proximity to the jurisdictional activities. Furthermore, he claimed that the applicant’s intention to become a member of the Brazilian Bar Association while exercising the role of conciliator compromises the principles of Public Administration, especially those of impersonality and morality.

The rapporteur, summoned federal judge Rosimayre Gonçalves de Carvalho, explained that the law graduate who acts as a conciliator does not hold a permanent position or a commission in the Judiciary, not being subject to the hypotheses of incompatibility provided for in art. 28 of the Statute of Lawyers and the OAB (Law No. 8,906/94), there being only an impediment to the sponsorship of actions proposed in the Special Court itself.

“If the law establishes the limits of incompatibility and impediment to the practice of law, the authority appointed as coercer cannot expand the restrictions provided, mainly because it is a special authority, subject to the principles of Public Administration and, consequently, to the limits of strict legality, even because, if there is no distinction made by the legislator, it will not be up to the interpreter of the norm to distinguish”. The federal judge stated that the appealed sentence is in line with jurisprudence on the subject.

The rapporteur concludes by stating that the author’s activity as a Special Court conciliator does not result from incompatibility, but a simple impediment to the practice of law.

Process: 0012443-28.2013.4.01.3600