O princípio da reparação integral de danos aplicados aos honorários advocatícios contratuais

Abstract

The present study aims to narrow the indemnity duty of attorney’s fees to the Principle of Integral Repair, or make one whole, as a way of justice embodiment. Acknowledged the raise of incentive in arbitration and mediation practices, the attorney’s job must regard to avoid judicial wear and tear, and make their clients aware of a bad right (or a suit fated to failure – for example the Evidence Protection, mechanism introduced in Brazilian Legal Order with the Processual Civil Law of 2015). In an empiric way, the analysis of judgment of college courts and monocratic decisions, in numerous states, from a judge to the Supreme Court, revealed the application and petition in unsatisfactory levels of the theory addressed in this work, as well as a change in jurisprudence of the Superior Tribunal of Justice, yet that change does not make the subject pacific in courts decisions, leaving the parties in the search for the better understanding. There is also to be taken in account the doctrinaire discussion around the theme, for there is not given enough emphasis on the possibility of recovery the fees made by the parties – that is, with the exception of the Public Defender these expenses are mandatory, for only recently was the Pro Bono regulated in the country. Not being a pacific theme in national academy nor jurisprudence, it finds resistance of applicability by both lawyers – considering that probably they do not present the possibility to their clients – and magistrates, that repeated times face charges in Judicial Administrative Department for not giving attorneys’ rightful fees and extending the prejudice towards the winning party. It shall, after all, gather strength and be treated with better eyes, for the pursuit of truth and justice is restless battle, and said application will allow suits otherwise made impracticable because the attorneys’ fees are higher than the lawsuit’s economic advantage longed for; will drastically reduce adventurous or completely wrongful suits, a real vendetta that collaborates to the judicial machine’s binding; as well as function as stimulus for the extrajudicial conflict-solving practices.