A litigância predatória instrumentalizada por fraude no mandato e a responsabilização do advogado: uma análise à luz da Recomendação nº 159/2024 do CNJ

Abstract

This paper analyzes predatory litigation carried out through the forgery of powers of attorney, characterized by the mass filing of lawsuits by attorneys who fabricate mandate instruments in the names of individuals who are unaware of the existence of the proceedings. It examines CNJ Recommendation No. 159/2024, which established national guidelines to address the phenomenon and systematized preventive and repressive measures. It demonstrates that the legal system lacks mechanisms allowing judges to impose direct procedural sanctions on the attorney responsible for the predatory conduct, and that administrative accountability by the Brazilian Bar Association (OAB) and civil liability through separate actions prove insufficient to deter the practice. Through a bibliographic review, analysis of CNJ normative acts, examination of technical notes issued by the courts, and a study of the case law of the Superior Court of Justice (STJ) (Theme 1,198), the paper concludes that legislative reform is necessary to establish a two-phase procedure: a preliminary investigation based on the court’s general power of caution, followed by direct sanctions when fraud is objectively proven, with due process guarantees, including adversarial proceedings and the right to a full defense. Maintaining the current paradigm amounts to institutional acquiescence in practices that distort judicial proceedings, causing billion-dollar losses to the State, paralysis of the Judiciary, and exploitation of vulnerable groups.