Minister Dias Toffoli’s move to leave the Banco Master case to the STF (Supreme Federal Court) demonstrates maturity, but is still superficial. This is the opinion of the president of -SP (Brazilian Bar Association, São Paulo section), criminalist Leonardo Sica.
Sica argues that the court does not have the competence to conduct the process and needs to step aside from the case. “The STF is not a criminal court”, says the lawyer. “And because it’s not a criminal court, when you get involved with such complex cases, the result is that the court is difficult.”
He states that the OAB-SP should analyze in March a consultation on the ethical limits in the relationship between a lawyer and a judge, including a virtual jet travel scenario with a STF minister, like the episode involving minister Dias Toffoli.
The conversation took place after the minister appointed himself as rapporteur of a proposed code of ethics for the court. On the same day, the minister, president of the (Superior Electoral Court), announced.
“It was a happy surprise”, says Sica, who was in Brasília at the time. He states that they told him: “What you did is very beautiful, but it won’t go away from here.” This is because OAB-SP is the author of one for the STF.
The idea of ethics guidelines for ministers has the support not only of the São Paulo section of the Order, but of . The proposal, however, faces . Even the Federal Council of the OAB took a while to respond.
As shown by SheetOAB Nacional sent Cármen and Fachin a document with guidelines to guide the preparation of the text. The message ignores the São Paulo draft and sends a message about the “hasty endorsement of formulations that have not yet been formalized”.
“OAB Nacional thinks that the time to mature the idea is after the Federal Supreme Court presents the proposal. There is a difference of opinion between OAB Nacional, OAB-SP and several other OABs”, stated Sica, before the OAB Nacional’s demonstration.
Sica received the Sheet at the headquarters of the section on the 2nd. The lawyer responded to new questions from the report last Friday (13th) after the announcement of Minister Toffoli’s departure from the Banco Master case.
Like mr. Did you receive the announcement of the code of ethics? It was a happy surprise. Because minutes before it was said that it would not be viable. They met me in the corridors and said: “What you did is really beautiful, but it won’t happen from here. There’s no atmosphere.” My concern was that the debate would be banned. There are ideas that have their time. They are not from someone, they are from time, from society. It’s what we want, as at some point society wanted Direta Já, a new . Society now wants this.
And how do you evaluate Minister Cármen’s recommendations? She has already started to draw the conceptual lines of what she intends to do at the STF. It’s a foreshadowing. The debate now gives the opportunity to re-assume an important question: who is against it, to present themselves and say why. We hear about resistance, but until now they seem hidden. I don’t know who, why resists. It’s good that you introduce yourselves. It may be that there are “snags” in the idea that we are not seeing.
A wing of the Supreme Court says it is an election year and that the court is under attack. Like mr. would you respond? Unfortunately, the Federal Supreme Court will not be leaving the headlines anytime soon. Waiting for the moment when it’s not in the spotlight… It’s waiting for never. It won’t happen. And we have elections every two years in Brazil. If we don’t carry out reforms because of this, we won’t do anything else. We cannot paralyze.
Why the OAB Nacional did not endorse the OAB-SP proposal? The National OAB chose to talk about judicial reform. The OAB system has complexities… There are, naturally, and it is good that there are, differences in perspectives and time. The National OAB believes that the time to mature the idea is after the Federal Supreme Court presents the proposal. There is a difference of opinion between the National OAB, the São Paulo OAB and several other OABs.
Who is on the OAB-SP side and who is on the national side? Our position was presented at the Federal Council session [no dia 2]and no one was against it. Nobody spoke out otherwise. I consider that we have broad support. Publicly, the OAB of Paraná and Minas Gerais expressed themselves more clearly in favor. I imagine there is no state against it.
Only the president [do Conselho Federal da OAB] Beto Simonetti. The national team awaits the Supreme Court’s response. Let’s respect it.
I want to discuss some points of the proposed code. The art. 8th says that “the court sessions will be in person, with remote participation being possible in exceptional cases.” Why did an in-person trial become a guide for a minister’s conduct? The in-person trial is public. Virtual has no advertising, no public discussion. The minister does not argue with the lawyer, with the other person. No one sees how this is judged. This is very harmful. Let’s remember that the lawyer is the first inspector of the judge’s actions. But the lawyer doesn’t know what happens online. The lawyer not participating in the trial means the citizen does not participate.
Can’t this be seen as a corporatist demand? It is a legal demand, but it coincides with the public interest. The journalists who cover the Supreme Court, what do they do? Go, sit in the plenary and watch the judgments, the causes that take place. It is a huge loss for citizenship. It is a constitutional shock that we need to discuss. Are we going to use technology? Come on, but how much will technology prevent publicity in trials?
Another controversial point is the lack of provision for punishment in the case of ethical misconduct. Why shouldn’t there be something along those lines? We understand that punishment can only be provided for by law, and codes of conduct that follow the self-regulation model do not provide for sanctions, because it is “soft power”. The code exists as a moral imperative and guide to conduct. The sanction does not seem necessary to me. But impeachment continues to exist. The code of conduct can provide the basis for the impeachment process. It’s not the idea, but it can.
At the beginning of the Master case, there was a jet trip between Minister Toffoli and a lawyer. Doesn’t the legal profession also need to think about updating ethical standards? It needs. We have, at the Ethics Court, an open process for the OAB-SP to express its understanding regarding this fact, not regarding the specific case. From March onwards, we will analyze exactly this hypothesis. The Ethics Court received an external consultation, and we will explain when the lawyer has to, in accordance with the code of ethics, turn on the proximity limit alerts with the judge.
What is the internal process like? There was a consultation on some hypotheses of proximity between lawyers and judges. What are the ethical limits for lawyers? All in theory. Can a lawyer travel by jet with a judge? Yes, people can maintain their relationships. The question is whether this judge can judge the case later? That’s what we have to decide, whether they can meet in the process up front. And if the lawyer is obliged to warn.
Like mr. Do you evaluate the Supreme Court’s stance in the Master case today? The Supreme Court should not be trying these criminal cases. It is a constitutional court, not a criminal one. And, because it is not a criminal court, when it is involved with such complex cases, the result is that the court becomes difficult. A minister having to talk about a criminal investigation… That doesn’t exist. Not in this case, not at all.
In addition to the sealed evidence, there was a determination to confront him before the testimony and place the case under secrecy. So, the Supreme Court is not a criminal court. The criminal court judge knows how to conduct an investigation. There are competent judges for this. We cannot believe that the only competent magistrates in Brazil to deal with cases are Supreme Court ministers.
Mr. Do you think Minister Toffoli should step aside? The Supreme Court should step aside from the case. I don’t want to customize. I don’t think it’s an issue linked to him.
What does it mean, from a historical and institutional point of view, for Minister Dias Toffoli to leave the Banco Master case? The impeachment or suspicion of judges is a subject that is poorly handled in the Brazilian legal system. So, the first time that the Federal Supreme Court takes a step to change the rapporteur of a case due to impediment or suspicion, although it said it is not, it is. It is a relevant decision. It is a decision that shows institutional maturity and that we are moving towards addressing an important issue.
Like mr. evaluate the response given by the Supreme Court ministers —and the way in which it was given— to the growing pressure surrounding the Master case? I understand the response of the Federal Supreme Court to the entire Banco Master crisis at this time as superficial, which demonstrates the need to continue the debate on the code of conduct to improve the instruments for defending the integrity of the court.
In an interview with Folha, he stated that, if the Supreme Court continues to act in this way, the reforms could be more drastic than a code of ethics. This analysis is correct. The lack of self-restraint can lead the Supreme Court to this. Being contained by other Powers is the worst scenario for Brazilian democracy.
Is the STF closer to regulating itself or being regulated? I’m optimistic. I think it’s closer to self-regulating.
X-ray | Leonardo Sica, 51
Graduated in Law from USP, he has a doctorate in criminal law from the same institution. He was director of IBCCrim (Brazilian Institute of Criminal Sciences) in 2002 and president of the São Paulo Lawyers Association (2015-2016). Founder of the Sica Advocacia office, he assumed the presidency of OAB-SP in 2025 with a mandate until 2027.
