The lawyer in the quality of employee
March 28, 2018
This author has written in previous opportunities in this section, that the contract of employment is characterized when present the legal subordination, the personality, the continuity, payment of wages. The employee does not assume the risks of production and thus, as provided in articles 2 and 3 of the consolidation of labour laws, the capable, or relatively incapable person (minors from sixteen full years) may fall as a part of a Employment contract, on the condition of employee. As has been said, the person capable, and why not the lawyer, can provide services in the condition of employee, to carry out the functions pertinent to legal issues both in litigation and advisory and/or preventive. The lawyer can perfectly present the legal requirements, be a service provider as an employee. Recently, in the process AIRR-4701.61.2008.5.01.0036, a lawyer postulated in labor court and did not succeed, as to the collection of employment contract, having as an opposing party a law firm Carioca. In the case of concrete, the lawyer raised only as an exclusivity as a way of obtaining legal subordination and that requirement was not sufficient for the recognition of the employment contract. It is important to emphasize that the activity of advocacy with employment relationship, having as employer, legal persons of private law or natural persons, is supported by Law n. 8.906-94-statute of advocacy and OAB-articles 18 to 21 of the law. 8.906-94 and articles 11 to 14 of the general regulation. One of the most recent judges (October 2011) of the egregious Regional Court of 24th. Region, Mato Grosso do Sul, whose judgment was reported by the Federal judge of Labor Amaury Rodrigues Pinto Junior and recognizes the contract of employment says "… The lawyer employed is governed by special legislation, so that it applies to him the Additional night of 25%, as well as additional overtime of 100% under the terms of art. 20, § § 2 and 3, of Law n. 8906/1994. Declaration embargoes unanimously accepted. (TRT 24th; ED 602-39.2015.5.24.0004; First class; Rel. Des. Fed. Junior Rodrigues Pinto; Judge. 05/10/2011; DEJTMS 19/10/2011; Page. 21) In this way, if the lawyer, who has total technical exemption and professional independence inherent to the law receives orders, does not cost the expenses for the exercise of the activities, but essentially is subordinate to individuals or legal, it is Employee. The exclusivity and lack of control of the working day are not preponderant details for the recognition of the employment contract.