CADE, the Bar association and the schedules of lawyers’ fees

On July 19, 2022, CADE’s General Superintendence (“SG/CADE”) issue its final Technical Note in an Administrative Proceeding which investigates a schedule/scale of lawyers’ fees from the Brazilian Bar Association (Ordem dos Advogados do Brasil – OAB), which has been ongoing for 17 years. On the occasion, the SG/Cade recommended that the Bar Association’s Federal Council (“CFOAB”) be convicted for influencing uniform commercial conduct, since the schedules issued had were imposing-obligatory, being harmful to competition in the market.

CADE has a history of investigations to curb schedules of fees from trade associations in several markets, “combating uniformization of conducts in markets for the rendering of professional services, such as those from doctors, against which approximately 80 (eighty) cases of schedules of fees have been convicted up until 2018, as well as those involving realtors”. The discussions on the (i)legality of these schedules tend to focus on, among other things, the degree of imposition of the amounts, which is proven through elements such as sanctions applied to those who did not observe the stipulated levels.

The CFOAB issued a statement regarding the SG/CADE’s final Technical Note and its recommendation of conviction, highlighting the public function provided by lawyers that is set forth in the constitution, equated to a public service, distinguishing it from other activities that operate in the free market. As so, the “Bar Association is not to be confused with other associations and trade entities”.

Regardless of the apparently settled position from CADE on the mater, there are decision from the Judiciary reverting convictions from the authority on the schedules of fees, recognizing that they are merely for reference and are non-compulsory, serving only to guide liberal professionals.

In conclusion, everything indicates that the discussion, controversial at its origin, is just beginning and will be prolonged through new developments.