Attorneys’ Fees: The Types, How They Are Set, and What Sucumbência Is

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Anyone who hires a lawyer will usually encounter three kinds of fees: contractual fees, court-awarded fees paid by the losing side (known in Brazil as sucumbência), and fees set by the judge. Understanding the difference between them helps you avoid unexpected charges and protects the budget of anyone who turns to the courts.

The Three Types of Attorneys’ Fees

Contractual fees are the ones agreed on directly between the lawyer and the client and recorded in a services agreement. They are the compensation you negotiate for handling your case, regardless of how the lawsuit ultimately turns out.

Losing-party fees (sucumbência), on the other hand, result from the other side’s defeat. The judge sets them in the judgment, and they go to the winning party’s lawyer, as provided in Article 85 of Law 13.105/2015, the Code of Civil Procedure. Fees set by the judge, in turn, arise when there is no prior contract or when the judge must determine the amount through an equitable assessment, a situation common in cases with no measurable economic benefit.

How the Amounts Are Set and the Role of the Contract

For losing-party fees, procedural law establishes a range: the judge sets them between ten and twenty percent of the amount of the award or of the economic benefit obtained or, if neither exists, of the adjusted value of the claim. The decision takes into account the work performed, the complexity of the subject matter, and the time devoted to the case.

Contractual fees follow a different logic, marked by the freedom to negotiate granted by the Brazilian Bar Statute, Law 8.906/1994. They may be charged as a flat fee, at an hourly rate, or under the model known as quota litis, a contingency arrangement in which the lawyer’s pay is a percentage of the result obtained in the case.

This limit appears in the Code of Ethics and Discipline of the legal profession, and it exists precisely to protect the interests of the person hiring the lawyer. A well-drafted contract states the applicable percentage, the basis of calculation, and who receives the losing-party fees, which heads off future doubts.

They may be charged as a flat fee, at an hourly rate, or under the model known as quota litis, a contingency arrangement in which the lawyer’s pay is a percentage of the result obtained in the case.

Who Pays the Losing-Party Fees, and the Effect of Free Legal Aid

As a general rule, the losing party pays the losing-party fees to the winner’s lawyer. This is a consequence of losing the case, and it comes on top of court costs and the other expenses of the proceedings.

The situation changes when the losing party receives free legal aid (justiça gratuita, a waiver of court costs and fees for people who cannot afford them). In that case, Article 98 of the Code of Civil Procedure provides that collection is suspended for up to five years. If the person’s financial hardship continues throughout that period, the obligation is extinguished. The benefit does not erase the debt right away, but it prevents enforcement for as long as the proven financial hardship lasts.

Fees in Social Security, Labor, and Civil Cases

The amounts charged vary with the complexity and the procedure of each area of law. In social security cases, such as benefit claims against the INSS (Brazil’s National Social Security Institute), the quota litis model is commonly used, with a percentage applied to the back payments the agency pays when the judgment is enforced. The percentage is usually negotiated between the parties before the representation begins, and the ethical limits require that the contractual fees and the losing-party fees combined not exceed the total of the amounts obtained in the case.

In labor law, the Labor Reform introduced by Law 13.467/2017 brought its own rules, and a fee agreement must now be in writing, with the percentage or amount agreed on clearly stated. Losing-party fees in labor cases follow different parameters from those in civil proceedings: they are calculated on the liquidated amount of the award and capped at the ceiling set by the reform legislation.

In civil and consumer law, a flat fee per stage of the proceedings is common in less complex cases, while percentages of the result predominate in larger property disputes. Correctly identifying the procedure that applies to your case directly affects how you project the total cost of the lawsuit, and it is essential that you understand this distinction before signing any representation agreement.

The particular nature of a social security case calls for extra care when drafting the contract: it must state whether the fees apply only to the past-due amounts up to the date of the judgment or also to the future monthly benefit. The prevailing ethical guidance allows fees only on back payments, but the contract should be explicit on this point to avoid any later dispute between client and lawyer.

The OAB Fee Schedule and Its Guiding Role

The OAB (Brazilian Bar Association) publishes state-level fee schedules with reference amounts for charging fees in different types of cases. Although they are not mandatory, these schedules serve as a minimum benchmark, and the courts often use them when they must set fees in cases with no contract or with a contract that is silent on the amount.

The schedule takes into account the type of action, the stage of the proceedings (out of court, first-instance court, or appeal), and the complexity of the work performed. Checking the suggested amount before you hire a lawyer lets you verify whether the fees being charged fall within a reasonable range for your region and the type of case involved, so you are not surprised when the bill arrives.

Besides guiding the client, the schedule also protects the lawyer. Article 22 of the Bar Statute ensures that, if the fees are collected through a lawsuit, the amount is set on the basis of these references when there is no clear contractual provision. Having a well-structured contract is therefore in the interest of both the person hiring and the person providing the service, since it leaves no room for conflicting interpretations of what the parties actually agreed.

Fees at the Appeal Stage and Appellate Fees

A lawsuit rarely ends in the first instance. Appeals, interlocutory appeals, and motions for clarification, along with any appeals to the higher courts, require additional work from the lawyer. Charges for these stages must be expressly provided for in the contract with the client, leaving no doubt about which levels of court are covered by the original agreement.

When the contract is silent on appellate work, it creates fertile ground for disagreements. A lack of clarity often leads to conflict between client and lawyer, especially when the case moves to higher courts and the workload grows significantly. For that reason, a good contract details each stage of the proceedings and specifies the amount or percentage for each one, allowing you to assess the total investment clearly.

As for losing-party fees, an appellate decision that reverses the judgment may increase or reduce the fees set in the first instance. Article 85, paragraph 11, of the Code of Civil Procedure expressly provides for so-called appellate fees, an increase applied when the appellant’s appeal is denied. This mechanism discourages appeals filed merely to delay the case, and it compensates the opposing party’s lawyer for the work of opposing the appeal, without requiring a new, separate engagement for that purpose.

Precautions When Formalizing the Engagement

Before you sign, you should insist on clarity about every charge that may be billed to you. The contract needs to distinguish the contractual fees from any losing-party fees, stating who will receive the latter at the end of the case.

It is also prudent to check how court expenses, expert costs, and work on any appeals will be handled. Transparency at this stage reduces conflict and lets you assess with confidence the total cost of taking your claim to court.

In cases expected to last a long time, such as retirement disputes or reviews of a disability benefit, it is also advisable to set out how the contract will deal with a change of lawyer during the case. Providing for fees proportional to the work actually performed up to any termination is a legitimate safeguard for both sides, and it avoids complicated arguments over how much has already been done and how much remains.

Frequently Asked Questions

What is a quota litis agreement?

It is a type of contract in which the lawyer receives a percentage of the economic result of the case instead of a flat fee. It works as a way of sharing the risk of the lawsuit, since the main compensation depends on success. The ethics rules impose a limit: the total the lawyer receives as contractual fees and losing-party fees cannot exceed the benefit the client obtains.

If you lose the case, do you have to pay the other side’s lawyer?

Yes. The losing party is responsible for the losing-party fees owed to the winner’s lawyer, in addition to court costs. The judge sets the amount in the judgment, within the range provided by law. The one significant exception occurs when the losing party receives free legal aid, in which case collection remains suspended for the period established by the Code of Civil Procedure.

Can fees be collected from someone who has free legal aid?

The order to pay exists, but enforcing it is suspended for up to five years. During that time, the creditor may collect if able to prove that the debtor is no longer in financial hardship. If that period passes with no change in the person’s financial situation, the obligation is extinguished. For this reason, free legal aid protects the losing party without immediately eliminating the liability recorded in the decision.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.