Brazilian Bar Association of Paraná (OAB-PR): Judge Moro cannot prohibit lawyers from recording hearings.
The Paraná state chapter of the Brazilian Bar Association (OAB) criticized Judge Sergio Moro's decision to prohibit lawyers from recording hearings in the Lava Jato corruption investigations. "The better the record of the hearing, the more security there is for everyone. When the minutes were originally conceived, the objective was to preserve an exact memory of what happened. If there are better technological means than a clerk next to the judge, we can improve the certainty of what occurred," said the president of the association's Prerogatives Chamber, Alexandre Quadros, who will analyze the complaint filed by former President Lula's defense team regarding Moro's decision.
By Felipe Luchete, from Conjur - The act of turning on a recording device during a hearing without prior authorization, defined by federal judge Sergio Fernando Moro as a "serious irregularity," is seen as a right of parties and their lawyers by the Paraná branch of the Brazilian Bar Association. The president of the entity's Prerogatives Chamber, Alexandre Quadros, affirms that no judge can prohibit the practice, because public servants can only act based on an express legal provision. And the prohibition of recordings does not exist in our legal system, he says.
On Thursday (February 9th), in the minutes of the hearing, Moro declared that "no party has the right to record audio or video of the hearing without the express authorization of this court." "The parties are hereby warned, based on article 251 of the Code of Criminal Procedure, not to make video recordings of the hearing without the court's authorization," stated the head of the 13th Federal Court of Curitiba. According to the cited provision, the judge is responsible for the regularity of the process and may even request public force.
Lawyers for former president Luiz Inácio Lula da Silva brought the matter to the OAB-PR (Brazilian Bar Association of Paraná). The request for action is in the hands of Quadros, who may issue a unilateral decision or distribute the matter to one of the 18 other members of the Prerogatives Chamber.
Before analyzing the specific case, however, he defended two premises to the online magazine Consultor Jurídico: hearings are public acts, as a rule, and the 2015 Code of Civil Procedure, which allows recording "by any of the parties, regardless of judicial authorization," can be applied by analogy.
"The better the record of the hearing is, the more security there is for everyone. When the minutes were first conceived, the goal was to preserve an exact memory of what happened. Over time, the minutes have come to not always accurately reproduce questions, considerations, and other details. If there are better technological means than a clerk beside the judge, we can improve the certainty of what occurred," says Quadros.
The only caveat, according to the OAB-PR member, is that the lawyer and others involved exercise this prerogative openly, with the devices visible to the participants. The entity even has a ruling with a similar understanding.
Previous
In 2012, when analyzing a request for public redress, the Prerogatives Chamber of the regional section declared that "the lawyer may document, for later consultation, the testimonies given in the hearing, using their own recording equipment," without the need for a prior request. "In observance of procedural fairness, the recording must be overt."
In the São Paulo branch of the Brazilian Bar Association (OAB), the 1st Professional Ethics Panel of the Ethics and Discipline Court deemed the recording of a hearing by a duly appointed lawyer lawful.
The issue has also reached the National Council of Justice in at least two complaints against a statement published in 2015 by the Court of Justice of São Paulo. The text stated that, "notwithstanding the absence of legal provision regarding the recording of the hearing by the parties, it is up to the judge of the case, within the jurisdictional scope, to authorize or prohibit said recording."
Both cases were eventually dismissed without a definitive ruling because the São Paulo Court of Justice (TJ-SP) changed the rule shortly afterward with the publication of the new Code of Civil Procedure (CPC). From then on, the São Paulo court ruled that the option to record must be "communicated to the judge prior to the start of the recording." The judge will be responsible for registering the act, indicating the name of the party and the method used. Neither of the plaintiffs pursued the matter further.
Repercussion
The controversy surrounding the freedom to record hearings has also generated repercussions in the legal field. According to criminal and constitutional lawyer Adib Abdouni, a lawyer can record a hearing, provided everyone is notified before the proceedings begin. "There is no impediment to recording, but the professional runs a risk if the process is confidential; if its content is leaked, they could face legal action from the Bar Association and in criminal court."
Lawyer Luiz Fernando Prudente do Amaral, a professor at the IDP São Paulo Law School, agrees. "The hearing, as a rule, is public. If there is no confidentiality, I see no reason to deny it. Especially since the doors are open to any interested parties. It is necessary to assess the context in which the narrated event occurred. Out of respect for the court, it is good practice to at least inform that the proceeding will be recorded," he states.
According to criminal lawyer Fernando Fernandes, who works on the "Lava Jato" operation defending Paulo Okamoto – president of the Lula Institute – "lawyers cannot submit to illegal orders that violate their prerogatives."