BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell, Marcelo Lucidi and Mayara Rahman Rufino, Duarte Forssell Advogados
6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination The privilege against self-incrimination is enshrined in both the Brazilian Federal Constitu - tion and the Criminal Procedure Code. This privi - lege protects individuals from being compelled by public authorities to incriminate themselves. Its primary legal effects include: • the entitlement to remain silent when pres - sured, with this silence not being held against the individual; and • the right to refuse to produce self-incrimina - tory evidence. When a defendant invokes this privilege, no inference is allowed to be drawn. 6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure Under Brazilian law, attorney–client privilege safeguards all communications related to the lawyer’s professional activity with a client, includ - ing the inviolability of lawyers’ offices and related work documents. These protections extend to any attorney registered with the appropriate Bra - zilian Bar Association. Due to this constitutional safeguard, any writ - ten correspondence exchanged between a cli - ent and their attorney (who is duly registered with the relevant bar association), whether in physical or digital format, is considered confi - dential and cannot be disclosed to third parties. Moreover, lawyers are typically prohibited from acting as witnesses in legal proceedings unless authorised by the client. Beyond constitutional provisions, various laws and regulations extend
similar protections to attorney–client communi - cations in Brazil, including: • Code of Ethical Conduct issued by the Brazil - ian Bar Association; • Federal Law No 8,906/94, which governs the Brazilian legal profession; • Civil Procedure Code; • Criminal Procedure Code; and • Criminal Code. Exceptions to the confidentiality rule are rare and require thorough examination on a case- by-case basis. Generally, lawyers may breach client confidentiality in limited circumstances, such as when there is a risk to life or reputation, for the lawyer’s own protection against the cli - ent, or with explicit authorisation from the client (waiver). It is also possible to waive the attorney’s invio - lability if there is proof indicating that a lawyer has engaged in criminal activity. In such cases, a judge has the authority to revoke confidentiality to enforce a search and seizure warrant, with a representative from the Brazilian Bar Associa - tion present. However, it is prohibited to utilise documents or items owned by clients, as well as any other tools of the trade containing client information, during this process.
7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages
In the Brazilian legal framework, explicit provi - sions for the application of punitive or exemplary damages are absent. This is due to the civil liabil - ity theory adopted by the Brazilian Civil Code, which measures liability based on the extent of damages (Article 944 of the Civil Code).
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