Law no. 8.906 from 1994, also known as the “Practice Statute for Lawyers”, establishes lawyers’ rights in article 7; Law nº 13.245, in turn, altered two of its subsections and added three new paragraphs. The alteration that is of our interest at this moment is the one regarding XIV, whose original wording states: “[right] to examine, in any police office, even without powers of attorney, files regarding flagrant acts or investigations, completed or in progress, even if concluded to the authority, being able to copy documents and take notes”. The new text is currently worded as so: “to examine, at any institution responsible for conducting an investigation, even without powers of attorney, files regarding flagrant acts or investigations of any nature, completed or in progress, even if concluded to the authority, being able to copy petitions and take physical or digital notes”
The main alteration concerns not limiting the right to access files under police authorities, with the extension of the right of “any institution responsible for conducting an investigation”, which includes, among others, the Administrative Council for Economic Defense (CADE), which investigates antitrust matters. This change apparently removes the confidential nature of administrative proceedings, which prevented even lawyers with powers of attorney to look those files and take notes.
However, this is not the case, specially facing the text of the paragraphs (of which two are fundamental), starting with paragraph 10: “To access restricted files, the lawyer must submit powers of attorney to exercise the right set forth in subsection XIV”. Therefore, since there are many cases in which investigations are restricted, lawyers must submit powers of attorney almost always, even when they do not know if their client is being investigated in the matter at hand.
Paragraph number one is even sharper: “In regards to subsection XIV, the competent authority can limit lawyer’s access to the evidence concerning investigations that are underway when there is a risk of compromising the efficiency, effectiveness or finality of the proceeding”. It is clear that the authority decides when there is a risk of compromising the investigation and, ultimately, a lawyer’s right to access the files and take notes. Even more, Law no. 12.529 of 2011 establishes in article 49 that authorities shall ensure, in antitrust proceedings, “the confidential treatment of documents, information and procedural acts necessary for the elucidation of the facts or as required by public interest”.
Much was written about this subparagraph, celebrating the legal change as if it was a benefit for both lawyers and clients. For antitrust advocacy, this is not the case, since investigations continue to bel restricted if the authority sees fit.