There are ways to profit from the transition between public office and private company. The “revolving door”, a metaphor for institutional capture, is one of them. A competent finance professional can leave the private sector, spend time at or in , and return to Faria Lima. And, when you return, sell the capital acquired in the public privately at a high price.
This porous arrangement poses risks to the public interest and to the image of impartiality of regulatory or judicial bodies. The risks can be mitigated by a quarantine mechanism, which forces the professional to leave for a period of time before returning to the market with the credential of a former authority. They can be further mitigated by common sense and virtue.
In the field of legal professions, this morally suspect porosity multiplies to the ultimate power. It passes through the informal revolving doors that connect court offices, dining rooms in Brasília, auditoriums in Lisbon, and relatives’ law offices.
But the architecture of the Justice system created something bigger: the open door regime. Anyone who has read “The Apprentices of Power”, by Sérgio Adorno, or “The Owners of Power”, by Raymundo Faoro, knows what patrimonialist bachelor’s degrees are capable of doing. In open door mode, the professional does not need to go to the trouble of leaving one place to enter another. He can occupy both at the same time. You can even organize your day: in the morning, at the office; in the afternoon, in the public office.
It has, in its collegiate body, two seats for minister-lawyers appointed by the President of the Republic. They do not need to leave the legal profession to exercise their mandate. This invention has existed since 1932, with the creation of . It was interrupted during the Vargas period.
They can advocate freely, they are only prevented from advocating in the electoral area. They can attend courts, with the prestige of ministers, and defend the interests of large clients in the offices of their fellow ministers. As if the elegant formality of the impediment resolved the asymmetry, as if the capillarity of the clients’ economic and political interests were neutralized by a legal fiction.
Toffoli, mind you, suggested fixing the problem. In 2015, he proposed a reform of Loman that would require lawyers appointed to the TSE to move away from private law and earn only a minister’s salary. It lost. The law firm won another one of its corporate fights.
Union lawyers have long complained about their deprivations. They were not content with boosting their public remuneration by gaining the right to loss fees (paid to private lawyers). Committee of the Chamber of Deputies has just approved a bill that grants them not only the salary, not only the death benefit, but also the right to private law.
Look for the arguments to support these two beautiful open door models. Then look for its empirical support in the history of the Brazilian Rule of Law.
Law defines itself, in its statute, as a public-private profession. Public-private lawyers, or JPPs, are lawyers who understand and respect the public dimension of their liberal profession.
The TSE’s open-door architecture encourages public-private to become parasitic-patrimonial. The magistocratic JPP. Union law asks you to understand this liberality.
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