The inconsistency in applying the equity criterion to set attorney’s fees outside the situations provided for by law.
22/04/2025

As is well known, in all judicial proceedings—except writs of mandamus—at the end there is a ruling for payment of attorney’s fees (honorários de sucumbência) in favor of the winning party’s lawyer. If one of the parties in the process is the Public Treasury (municipal, state, or federal), the Brazilian Code of Civil Procedure (CPC) determines that the setting of these fees must follow the tiered parameters provided in Article 85, paragraph 3, with percentages ranging from 1% to 10%, depending on the amount involved in the case.
These criteria apply equally whether the Public Treasury is the winner or loser but always take into account the work performed by the winning party’s attorney, to avoid excessively high or excessively low fees.
These criteria are objective and must be applied to cases with a known or determinable economic value (liquid or liquidable content). Moreover, the tiered system limits the judge’s discretion to set a percentage within the minimum and maximum ranges already provided, ensuring predictability and legal certainty.
However, there are situations where the value involved is either incalculable or negligible, for which the CPC allows the judge to set fees equitably.
“Equitable assessment” refers to a method of arbitrating fees based on proportionality, reasonableness, and common sense. However, this does not mean the judge has complete freedom. Even in this case, the CPC provides guidance, especially paragraph 8-A of Article 85, added by Law No. 14,365/2022, which requires observing the fee values recommended by the Brazilian Bar Association’s sectional council or a minimum limit of 10%—whichever is higher.
Therefore, since this law’s enactment, there is a minimum floor for attorney’s fees when set by equity. This means that in cases involving the Public Treasury, this minimum may exceed the fee that would be set based on the tiered percentages in paragraph 3 of Article 85.
To explain better: for cases involving the Public Treasury, Article 85 of the CPC provides an objective criterion (paragraph 3) for cases with liquid or liquidable value and a subjective criterion (paragraphs 8 and 8-A) for cases with incalculable or negligible value.
Hence, it is inconsistent to apply the subjective (equity) criterion in cases with “exorbitant” values. After all, the purpose of equitable assessment is not only to avoid fees set at a negligible amount but also to prevent the opposite situation.
This reasoning was established by the Superior Court of Justice (STJ) in Theme No. 1,076:
“1) The setting of fees by equitable assessment is not permitted when the amount of the judgment or the value of the case or economic benefit obtained is high. In these cases, it is mandatory to observe the percentages set forth in paragraphs 2 or 3 of Article 85 of the CPC—depending on the presence of the Public Treasury in the dispute—subsequently calculated over the value: (a) of the judgment; or (b) of the economic benefit obtained; or (c) of the updated value of the case.
Fee arbitration by equity is only allowed when, with or without judgment: (a) the economic benefit obtained by the winner is incalculable or negligible; or (b) the value of the case is very low.”
However, the Public Treasury was not satisfied and appealed this understanding through Extraordinary Appeal No. 1,412,069, for which general repercussion was recognized (Theme No. 1,255). The issue to be analyzed is whether “the fixing of attorney’s fees against the Public Treasury must always and necessarily follow the criteria in paragraphs 3 to 6 of Article 85 of the CPC—or whether, in some cases, paragraph 8 of the same legal provision applies.”
This has made the situation “dangerous”—to say the least—in cases involving the Public Treasury, since if equity (paragraph 8) is accepted to set fees in these cases, it will be impossible to avoid the minimum floor of 10% set in paragraph 8-A.
This means that, in theory, the use of this criterion could lead to fees much higher than those resulting from the objective criterion (paragraph 3 of the same article), which, in our view, is a complete irrationality (as the popular saying goes, “shooting oneself in the foot”) and also distorts the purpose of the equity principle!
It is expected that the Supreme Federal Court (STF), when analyzing Theme No. 1,255, will consider the content of paragraph 8-A of Article 85 of the CPC and reaffirm what has already been defined by the STJ: the fixing of attorney’s fees in cases involving the Public Treasury must, obligatorily, follow the objective criteria in paragraph 3 of that provision, reserving equity for absolutely exceptional situations (negligible value), which also complies with Article 140, sole paragraph of the CPC (“The judge shall only decide by equity in cases provided by law”).
Therefore, it is extremely important that litigants in tax matters be well advised so they are not forced to pay unreasonable and illegal attorney’s fees.
Written by attorney Caroline Martinez de Moura.
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