The actions of relatives of ministers in the STF reignite debate on the Code of Conduct

The role of family members of ministers of the Federal Supreme Court (STF) as lawyers in the Court itself and in other higher courts has become one of the focuses of the debate on the need to create a Code of Conduct for judges. Survey carried out by Globe shows that children, spouses and ex-spouses of current ministers started to act in 94 cases in the STF after the magistrates took office. Family members also play a relevant role in the Superior Court of Justice (STJ), starting to act in 933 cases after their family members joined the STF.

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To make the STF more transparent and avoid possible conflicts of interest, there are a series of proposals being analyzed by the President of the Court, Edson Fachin, who appointed Minister Cármen Lúcia to report on the Code of Conduct. Among them is the suggestion from the São Paulo section of the Brazilian Bar Association (OAB-SP), which prohibits the role of judges in cases whose parties are family members up to the third degree or friends.

The mobilization for the Code of Conduct has the support of presidents of other higher courts and parts of civil society. FGV Direito SP professor Oscar Vilhena, member of the OAB-SP commission that prepared the proposal, states that the text aims to contribute to transparency:

— We understand that the authority of the Supreme Court depends on its ability to judge independently, and judgments must ensure equality between the parties. Having close family members in trials can create an imbalance of forces.

The initiative to create a Code of Conduct, however, has faced internal resistance in the STF. A meeting that would have taken place next week between members of the Court was canceled amid disagreements over which rules can be implemented to discipline the actions of magistrates. A new date must be set after Carnival. This Wednesday, minister Alexandre de Moraes stated during the session that the existing rules to regulate the activity of judges are sufficient.

In 2023, the STF declared unconstitutional an excerpt from the Civil Procedure Code that, since 2015, prohibited judges from judging cases in which one of the parties was the law firm of the spouse or relative of Court ministers up to the third degree. The majority of members of the Supreme Court considered that this prohibition violated the principle of proportionality. Gilmar Mendes, Dias Toffoli, Luiz Fux, Alexandre de Moraes, Kassio Nunes Marques, André Mendonça and Cristiano Zanin were in favor of this understanding. Edson Fachin, Luís Roberto Barroso, Rosa Weber and Cármen Lúcia were opposed.

For Ana Laura Pereira Barbosa, Law professor at ESPM, coordinator of a proposed Code of Conduct prepared by the Fundação FHC, of ​​former president Fernando Henrique Cardoso, the Supreme Court has the opportunity to approve a clearer rule on the conduct of its members and demonstrate its commitment to more transparency.

— This means recognizing that it is not enough to just be impartial, but also to make sure that you are perceived as such, avoiding any and all conduct that could raise a legitimate doubt about the existence of conflicts of interest or biased conduct. It does not mean bowing down to public scrutiny and assuming weaknesses, but rather showing that you listen to society and that you are interested in improving — said Barbosa.

“Filhophobia”

In an interview with EstadãoFachin said that he does not see the role of family members of ministers in the STF as a problem. According to him, there is a “filhophobia”.

— I, for example, have a daughter who is a lawyer. But the rule must be transparency. Everything on the table. Including, without “filhophobia”. Why should a son change careers when his father becomes a judge? It is not necessary. Now, there needs to be transparency. Does what? Where do you advocate? In what terms? In which actions? All of this has to be transparent — said the minister.

Lawyer Melina Fachin, his daughter, worked on four cases in the STF when her father arrived at the Court, and had another three after he became a minister. She says that, after her father took office, she established the rule of not taking on cases that were being processed in the Supreme Court, but maintained those in which she had already been “hired and followed since the beginning”. Fachin’s office added that most of the actions have already been processed and that the only one in progress was fined before the inauguration.

Lawyer Viviane Barci de Moraes, wife of minister Alexandre de Moraes, started practicing law in 1999 and signed nine cases at the STF until her husband took office at the Court in 2017. Since then, she has had 23 more cases. Graduated in Law from Universidade Paulista (Unip), Viviane has already represented education companies, health plans and insurance companies in Court, for example. More recently, he began defending a businessman involved in an investigation in the mining sector.

Before Fux took office at the STF, in 2011, the judge’s son, lawyer Rodrigo Fux, was at the beginning of his career, having graduated three years ago, and was responsible for a case at the Court. He then went on to sign another 48. He has represented, for example, companies in the agricultural, oil, educational and cosmetics sectors. He has a doctorate in Civil Procedural Law from Uerj, a university where he is also a professor.

Rodrigo Fux stated in a note that he has always acted in cases from the beginning in the lower courts and that the majority of the actions reached the STF on the initiative of the opposing party. The text says that the office of which he is a partner “was never hired to act on cases that were in the process of being sent to the STF, much less to act on cases that were already being processed in the Court”. Minister Luiz Fux’s office added that “since the children started practicing law, their impediment in any case in which they act has been recorded in the Court records”.

When contacted, the STF said that the law establishes the rules for the work of lawyers who are relatives of judges and the “clear hypotheses” in which they have to declare themselves unable to judge a case. “Ministers strictly comply with these rules, refraining from acting in any case in which there is a legal impediment”, says the text. Minister Alexandre de Moraes and his wife Viviane Barci did not comment.

Processes originating in other instances

The survey carried out by Globe took into account the date on which the cases reached the STF and was restricted to children and spouses, even if the divorce occurred later. In most cases, the action already took place in the lower courts, before the case went to the Supreme Court through appeals. Ministers Gilmar Mendes, Dias Toffoli and Cristiano Zanin also have family members who work at the STF.

In the case of lawyer Guiomar Feitosa Mendes, who separated from Gilmar at the end of last year, the three cases in which her name is registered with the STF were presented after the dean took office.

The firm Bermudes Advogados, of which she is a partner, stated that Guiomar does not work at the Court and that her name appears linked to cases due to her work in lower courts. The permanence of the registration, according to the text, occurs for a formal reason, without effective participation. Gilmar’s office added that Guiomar only began working in private law in the decade following the minister’s inauguration, who joined the Court in 2002. “Minister Gilmar Mendes did not decide any of these three cases”, says the text.

There are also situations in which participation in the Court today is lower than in the period before the ministers took office. Lawyer Roberta Rangel, Toffoli’s ex-wife, acted in 26 cases before her husband joined, in 2009, and in nine after. Lawyer Valeska Teixeira Zanin Martins, married to Zanin, was involved in 40 actions before his arrival at the Court, in 2023, and in seven later.

When contacted, Roberta Rangel says that the proceedings in her name in Court arise from her work as attorney for the Legislative Chamber of the Federal District. “Since my ex-husband (Toffoli) took office at the Supreme Court, I was the only one who expressly expressed the intention of not advocating at the STF.” When contacted, Toffoli said that she always declared herself impeded in processes in which she was involved. When contacted, minister Cristiano Zanin and lawyer Valeska Teixeira Zanin Martins did not respond.