Restrictions on the fundamental right to exercise the profession of lawyer by servants of public prosecution service

Abstract

The restriction of fundamental rights by the legislator is permissible under the conditions delineated by the Constitution. In this context, the article investigates the constitutionality of the restriction of the fundamental right to the free exercise of the profession of lawyer imposed by Resolution nº 27/2008 of the National Council of the Public Prosecution Service (CNMP), which forbids the practice of the profession of lawyer to the servants of the Federal and State Public Prosecution Services. From the differentiation between incompatibilities and impediments for lawyers; the distinction between the concept of members of the Public Prosecution Service and public servants who perform administrative activities; and the analysis of the interpretation given to Resolution nº 27/2008 of CNMP by the Courts and by the Federal Council of the Bar Association of Brazil (CFOAB), the study demonstrates that it is not possible for a resolution to create an absolute restriction of a fundamental right. The work also analyzes the possibility of the imposition of that restriction by a legislative act that complies with the principle of proportionality. It concludes that the incompatibility imposed by the Federal Law nº 11.415/2006 on the exercise of the profession of lawyer by servants of the Federal Public Prosecution Service designated after November 15th 2006 is constitutional, as well as restrictions on servants of the State Public Prosecution Service in the States that have issued laws prohibiting the activity of the profession of lawyer to those public servants.

Keywords: restriction of fundamental rights, freedom of professional practice, profession of lawyer, servants of the Public Prosecution Service, interpretation of the courts.