The purpose of this article is to bring a general outline of attorney fees borne by the losing party, which are fixed for equitable settlement.

Generally, attorney fees borne by the losing party are fixed according to the rule of art. 85, paragraph 2nd.

Art. 85. The judgment shall order the losing party to pay fees to the prevailing party’s attorney.

Paragraph 2nd The fees shall be fixed between a minimum of ten and a maximum of twenty percent over the value of the judgment awarded, of the economic benefit achieved or, if it is not possible to measure it, over the updated legal fees.

The article 85, paragraph 8th, of the Civil Procedure Code, brings a written consent for the equitable settlement of legal fees relating to claims in which the economic benefit is invaluable or irrelevant or, yet, when the value of legal fees is very low.

The purpose of this rule is to avoid legal fees are fixed at a low or inexpressive value, by properly paying the attorney that rendered the service in the proceedings.

The judge shall be responsible for observing the professional’s degree of diligence, the service rendering place, the nature and importance of the claim, the work done by the attorney, and the time required for his/her service, according to paragraph 2nd of art. 85 of the CPC.

In small claims, the judge is responsible for equitable settlement of attorney fees awarded to the prevailing party to avoid degrading the costs and valuing the attorney’s work.

In this step, taking into consideration that the purpose of this rule is to avoid that the attorney can be unfairly paid, no efforts are spared by the attorney so that in such cases the fees are increased, even if by a motion for clarification.

In a recent decision in the proceedings 1002516.41.2020.8.26.0562, the judge of the 10thCivil Court of the Judicial District of Santos has ordered the Defendant to pay the amount of BRL 3,195.99, and therefore, the percent of 10% incurred on the value of the judgment awarded, with respect to attorney fees, is arbitrated by the judge. i.e., a pitiful amount of BRL 319.59.

In view of low costs fixed as legal fees, the Plaintiff brings a motion for clarification due to the non-compliance with the equitable settlement rule by the court.

The judge has accepted the Plaintiff’s arguments by deciding:

"Case records examined.

Pages. 148/149: even though the motions bring in its wake a matter concerning the motions, I accept them only for increasing fees to 20% of the value of the claim, considering that there was not a defense, and the attorney still receives the contractual fees, Notice shall be served. Santos, September 17th, 2020.

The attorney fees were hereby increased from the amount of BRL 319.59 to BRL 639.18.

In fixing legal fees, the judge is responsible for observing the principles of reasonability and proportionality, i.e., to fix a value that is neither low, as it would be degrading to the attorney, nor unaffordable, but rather to correspond to a fair remuneration for the work developed by the professional in the proceedings.

For this purpose, attorney fees borne by the losing party take on vital importance to the right operation of the Justice, in aid of food supplies, representing an attorney’s means of survival that deserves to be treated with respect and dignity.

Santos, November 1st, 2021. ALEX SANDRO SIMÃO - OAB/SP 191.616 -