Brazilian Law – International Law of ABA – American Bar Association

By Alexandre Leite Ribeiro do Valle, Daniel Stein, Fernanda P. do Amaral Gurgel e Rogério Damasceno Leal – Published by ABA – American Bar Association

III. BRAZIL
A. Clean Record Law
On July 4 2010, Complementary Law No. 135/2010,1 popularly known as the “Clean Record Law,” was enacted, changing Complementary Law No. 64/19902 and dictating new parameters for the ineligibility of public elective offices in Federal, State, and Municipal spheres, aiming to protect the administrative probity and morality in the performance of public functions.3
This law resulted from the Clean Record Project, a Brazilian campaign that intended to improve the quality of the candidates in public elective offices. The law, which was signed by over 1.3 million Brazilian voters–representing more than one percent of the total Brazilian voters–was delivered to the Brazilian National Congress on September 29, 2009.4
Law No. 135/2010 has made ineligible State and Federal District Governors and Vice-Governors, as well as Mayors and Vice-Mayors who have lost their mandates for infractions to State, Federal District, and Municipal Constitutions, respectively, including those who have resigned from their mandates to avoid impeachment.5
This law further deems ineligible individuals who have been convicted by Electoral Justice in final decision or by decisions issued by a collegiate Electoral Tribunal, including those charged with infractions involving abuse of economic or political powers, crimes against the national economy or public administration, crimes involving the stock market, racism, money laundering, drug trafficking, and electoral matters, among others.6
Candidates who performed public functions in direct or indirect administration or foundations and who have benefited themselves or others by abusing economic or political powers, or who have had their accounts relating to the performance of the public office or functions rejected by an intentional act of administrative improbity are also ineligible.7
The main innovation presented by Law 135/2010 is the possibility of determining the ineligibility of candidates based not only on final decisions, but also by decisions issued by collegiate tribunals. This alternative was created to escape from the problems caused by the delay of Brazilian justices’ issuance of final decision in such cases, a process that may last for many years due to the great number of appeals.8
Moreover, of great importance was the extension of the ineligibility period; formerly three years from the end of the mandate or condemnation, the period is now extended to eight years.9
In deciding the applicability of the Law to a senatorial candidate, Jader Barbalho, the Federal Supreme Court’s justices divided five to five, because there is one vacant seat. Subsequently, the Justices decided by seven votes to three that the deadlock meant that the lower decision should be upheld.10 Three hundred and eighty candidates to the Brazilian Senate and the House of Representatives have had their candidatures rejected by the Superior Electoral Court since the Clean Record Law.11
B. Associations between Brazilian and Foreign Law Firms
On September 16th, the Ethics and Discipline Tribunal of the Brazilian Bar Association defined the ethical limitations on the cooperation between Brazilian and foreign law firms.12 This determination is only an opinion and not a ruling, because it resulted from a consultation and not a specific case, but it indicates the position of the majority of the Brazilian Bar Association on this matter.
The Board decided that no corporate association between Brazilian and Foreign Law Firms is legally possible in accordance with Provision 91/2000 of the Federal Council of the Brazilian Bar Association, which establishes rules for the activities of consultants in foreign Law and foreign Law Firms in Brazil.13
The opinion stated that although there is no restriction regarding cooperation or professional partnerships between Brazilian and foreign law firms in the execution of legal work for foreign clients, neither one may interfere with the professional activities of the other which could cause the loss of their respective professional independence or individuality.14 Thus, any Brazilian lawyer or Brazilian law firm that enters into a joint venture with foreign lawyers or foreign law firms, presenting the combination as a single entity, may be charged with an ethical violation and the foreign lawyers may be charged with the unauthorized practice of law.
The opinion determines that foreign lawyers may only practice in Brazil as consultants in foreign law and must register before the Brazilian Bar Association, being precluded from practicing as lawyers or consulting on Brazilian law. Foreign law firms must only be comprised of foreign lawyers and must register before the Bar. In parallel, Brazilian law firms cannot keep foreign lawyers as members.15
C. Changes to Divorce Law
After great resistance from conservative sectors of Brazilian society, on July 13, 2010, Constitutional Amendment No. 66 was approved, extinguishing the one-year period of legal separation or the two-year period of actual separation previously required to obtain a divorce.16 This measure, jointly with Law No. 11.441,17 made possible the extrajudicial consensual divorce of couples who have no children under eighteen years old and have changed entirely the legal framework existent since 1977, when the existing Divorce Law was enacted, which also required that both separation and divorce be subject to judicial proceedings.18

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