By: Michelle Marry Marques da Silva and Vládia Pompeu .
Posted: Wed Feb 19, 2025 5:43 am
The intrinsic relationship between accountability and freedom of action of the public lawyer always requires a lot of attention, especially when the analysis is inserted in the context of cases submitted to the control bodies.
Furthermore, deeper reflections on the role to be played by the legal advisor must necessarily be made, as carefully highlighted by the Supreme Federal Court in HC 158086, judged on 18.09.2018:
Assigning full responsibility to the reviewer could lead to two setbacks in the functioning of the Public Administration. First, the reviewer would be less likely to present innovative, albeit reasonable, theses, from which solutions more suited to the public interest in concrete terms could arise. Instead of making public policies viable, the public lebanon telegram data lawyer would become a mere bureaucrat, tied to longer, more difficult and costly procedures. This rigidity does not correspond to a return in public morality, but in inefficiency. Second, holding public lawyers fully accountable for their legal opinions would result in them assuming the role of administrators. (emphasis added)
The sensitive relationship reported becomes even more latent when we come across Ruling No. 7289/2022 of the First Chamber of the Federal Court of Auditors - TCU in which the municipal legal advisor who approved a draft bidding notice containing requirements that, in the analysis of that Court, would have unduly restricted the competitiveness of the event was held responsible.
In fact, the TCU's case law has been established over the years in the sense that legal opinions issued based on art. 38, sole paragraph, of Law No. 8.666/1993, are mandatory and binding, since, in this case, if the manager disagrees with the terms of the opinion, he/she must state the reasons for his/her disagreement. In this sense, the aforementioned legal provision states that "The drafts of bidding notices, as well as those of contracts, agreements, conventions or adjustments must be previously examined and approved by the Administration's legal counsel."
Added to the above understanding are arguments to the effect that if the manager decides to follow the opinion expressed in the legal opinion, the grounds contained in the opinion would be added to his/her decision-making act, thus, the legal advisor would be held liable when a serious, inexcusable error or fault in the broad sense is configured, here including intent or fault stricto sensu , in the practice of the act considered irregular.
Other TCU decisions exemplify the adoption of this position, such as Rulings No. 512/2003, 1,536/2004, 1,898/2010, 1,380/2011, 1,591/2011, 1,857/2011, 689/2013 and 434/2016, all from the Plenary. The Supreme Federal Court has also decided on the subject: MS No. 24,073/DF, MS No. 24,631/DF and MS No. 24,584/DF.
In the specific case of Ruling No. 7289/2022 of the First Chamber, as recorded, the reasoning was based on a serious and inexcusable error by the legal advisor when approving a draft notice containing requirements that, according to an analysis by the TCU, unduly restricted the competitiveness of the competition.
Well, at least three considerations are appropriate in relation to what was deliberated. First, there must be a proper separation between strictly technical clauses, which the legal advisor cannot give an opinion on even when approving a draft bidding notice, and those clauses whose legality is the responsibility of the advisor. Second, the provision contained in Law No. 13,327 of July 29, 2016, art. 37, § 2, indicating that “In the exercise of their functions, the occupants of the positions referred to in this Chapter [3] shall not be held liable, except by the respective correctional or disciplinary bodies, except in cases of willful misconduct or fraud.” And, third, who should be responsible for applying any sanction when a serious error is configured in the issuance of a legal opinion by state or municipal attorneys not covered by Law No. 13,327 of 2016.
Regarding the first important point, the decision was handed down in MS 35196 Agr by the Federal Supreme Court in the following terms:
Furthermore, deeper reflections on the role to be played by the legal advisor must necessarily be made, as carefully highlighted by the Supreme Federal Court in HC 158086, judged on 18.09.2018:
Assigning full responsibility to the reviewer could lead to two setbacks in the functioning of the Public Administration. First, the reviewer would be less likely to present innovative, albeit reasonable, theses, from which solutions more suited to the public interest in concrete terms could arise. Instead of making public policies viable, the public lebanon telegram data lawyer would become a mere bureaucrat, tied to longer, more difficult and costly procedures. This rigidity does not correspond to a return in public morality, but in inefficiency. Second, holding public lawyers fully accountable for their legal opinions would result in them assuming the role of administrators. (emphasis added)
The sensitive relationship reported becomes even more latent when we come across Ruling No. 7289/2022 of the First Chamber of the Federal Court of Auditors - TCU in which the municipal legal advisor who approved a draft bidding notice containing requirements that, in the analysis of that Court, would have unduly restricted the competitiveness of the event was held responsible.
In fact, the TCU's case law has been established over the years in the sense that legal opinions issued based on art. 38, sole paragraph, of Law No. 8.666/1993, are mandatory and binding, since, in this case, if the manager disagrees with the terms of the opinion, he/she must state the reasons for his/her disagreement. In this sense, the aforementioned legal provision states that "The drafts of bidding notices, as well as those of contracts, agreements, conventions or adjustments must be previously examined and approved by the Administration's legal counsel."
Added to the above understanding are arguments to the effect that if the manager decides to follow the opinion expressed in the legal opinion, the grounds contained in the opinion would be added to his/her decision-making act, thus, the legal advisor would be held liable when a serious, inexcusable error or fault in the broad sense is configured, here including intent or fault stricto sensu , in the practice of the act considered irregular.
Other TCU decisions exemplify the adoption of this position, such as Rulings No. 512/2003, 1,536/2004, 1,898/2010, 1,380/2011, 1,591/2011, 1,857/2011, 689/2013 and 434/2016, all from the Plenary. The Supreme Federal Court has also decided on the subject: MS No. 24,073/DF, MS No. 24,631/DF and MS No. 24,584/DF.
In the specific case of Ruling No. 7289/2022 of the First Chamber, as recorded, the reasoning was based on a serious and inexcusable error by the legal advisor when approving a draft notice containing requirements that, according to an analysis by the TCU, unduly restricted the competitiveness of the competition.
Well, at least three considerations are appropriate in relation to what was deliberated. First, there must be a proper separation between strictly technical clauses, which the legal advisor cannot give an opinion on even when approving a draft bidding notice, and those clauses whose legality is the responsibility of the advisor. Second, the provision contained in Law No. 13,327 of July 29, 2016, art. 37, § 2, indicating that “In the exercise of their functions, the occupants of the positions referred to in this Chapter [3] shall not be held liable, except by the respective correctional or disciplinary bodies, except in cases of willful misconduct or fraud.” And, third, who should be responsible for applying any sanction when a serious error is configured in the issuance of a legal opinion by state or municipal attorneys not covered by Law No. 13,327 of 2016.
Regarding the first important point, the decision was handed down in MS 35196 Agr by the Federal Supreme Court in the following terms: