Three kinds of fees, three different logics
The first step is to stop treating "fees" as a single thing. Art. 22 of the Statute of Advocacy (Law 8,906/1994) is explicit in listing the three sources in one sentence: "The rendering of professional services entitles OAB members to agreed fees, to fees set by judicial arbitration and to succumbence fees." Each arises from a different fact, has an owner and follows its own rule. Mixing them up leads to improper charges, for instance, assuming succumbence fees offset the contractual ones, when the Statute and the CPC itself say the opposite.
- Contractual (agreed) fees
- What the client agrees with the lawyer, freely set in writing (fixed, hourly, per-act or contingency/quota litis). Basis: arts. 22 and 24 of the OAB Statute and arts. 48 to 50 of the Code of Ethics.
- Succumbence fees
- Those the losing party pays to the winner’s lawyer, set by the judge in the judgment. They belong to the lawyer, not the party (art. 23 EOAB; art. 85 CPC).
- Arbitrated fees
- When there is no written contract, the judge arbitrates the amount by equitable assessment, and may not set it below the state-bar table (art. 22, §2, of the EOAB).
Contractual
- Who pays: the client who hired the service.
- Who owns it: the lawyer, as the agreed remuneration.
- Legal basis: arts. 22 and 24 of the EOAB; free agreement.
Succumbence
- Who pays: the losing party (the one who loses the case).
- Who owns it: the winner’s lawyer, not the party.
- Legal basis: art. 85 CPC; art. 23 EOAB.
Arbitrated
- Who pays: the client, when there is no written contract.
- Who owns it: the lawyer who rendered the service.
- Legal basis: art. 22, §2, EOAB; not below the table.
One point that settles half the doubts: contractual and succumbence fees are autonomous. Succumbence fees belong to the lawyer under art. 23 of the EOAB, they subtract nothing from what the client agreed. The lawyer may receive both: what was agreed with the client and what the judgment awarded against the loser. This is what the fee agreement generator records, already including the clause that makes this autonomy explicit. Later, in the section on the nature of fees, we will see why art. 85, §14 still forbids offsetting the two lawyers’ fees in reciprocal succumbence.
What the OAB table is (and is not)
The "OAB fee table" is not a single national table and it is not a ceiling. Each state bar section (OAB/SP, OAB/MG, OAB/RJ, and so on) issues its own table with reference amounts for the most common services. These amounts are floors, and the floor is ethical, not merely suggested: the 2015 OAB Code of Ethics and Discipline, in art. 48, §6, states that "the lawyer shall observe the minimum value of the Fee Table established by the respective Seccional Council where the service is rendered, including that for court diligences, under penalty of characterizing fee degradation." Charging below the table may amount to a disciplinary offense.
The two-way rule is this: the table is a floor, not a ceiling. Below it, fee degradation (CED, art. 48, §6); above it, freedom, contractual fees are freely agreed (art. 22 of the EOAB), limited only by the moderation criteria of art. 49 of the Code of Ethics (relevance and complexity of the case, economic value, the client’s means, local practice). The table has a third role too: it is the minimum parameter when a judge must arbitrate fees without a written contract, because art. 22, §2, of the EOAB forbids setting them below it.
The OAB table IS
- An ethical floor per state bar section (CED, art. 48, §6)
- A parameter against undercutting the profession
- A minimum floor for judges to arbitrate fees without a contract
The OAB table IS NOT
- A single national fixed price
- A ceiling that prevents charging more (art. 22 EOAB)
- The succumbence rule (that comes from CPC art. 85)
Because each state publishes its own table, the amounts vary from one section to another and each one is adjusted on its own calendar. The OAB fee table tool gathers the available sections and flags the validity date of each. Treat the figures as a starting parameter, not a mandatory price, and always check the official, current table of your own section before relying on a specific value.
Succumbence and CPC art. 85
Succumbence does not come from any OAB table: it is set by the judge in the judgment, based on art. 85 of the Code of Civil Procedure (Law 13,105/2015). The general rule, for cases between private parties, is in §2: fees range from 10% to 20% on the amount of the condemnation, on the economic benefit obtained or, if that cannot be measured, on the updated value of the claim. Within that band the judge does not pick a number at random, four statutory criteria are weighed.
- The professional’s degree of diligence (§2, I).
- The place where the service is rendered (§2, II).
- The nature and importance of the case (§2, III).
- The work performed and the time it demanded (§2, IV).
When the losing party is the Public Treasury, the math changes shape. §3 imposes staggered brackets according to the condemnation (or economic benefit) measured in minimum wages, and §5 orders summing bracket by bracket: each percentage applies only to the slice that falls in its bracket, exactly like income tax. Applying a single percentage to the whole base is the classic error that shifts the result by tens of thousands of reais. And §6 clarifies that these brackets apply whatever the content of the decision, including dismissal on the merits or without merits.
| Item | Bracket (minimum wages) | Percentage |
|---|---|---|
| I | Up to 200 | 10% to 20% |
| II | Above 200 up to 2,000 | 8% to 10% |
| III | Above 2,000 up to 20,000 | 5% to 8% |
| IV | Above 20,000 up to 100,000 | 3% to 5% |
| V | Above 100,000 | 1% to 3% |
The staggered calculation, bracket by bracket
The §5 sum has a simple formula: for each bracket, multiply the slice of the base that falls into it by that bracket’s rate; then add the pieces and convert the total by the minimum wage at the judgment date. It is the same mechanics as a progressive tax.
H = (p₁·a₁ + p₂·a₂ + … + pₙ·aₙ) × SM- H
- total fees, in reais.
- pᵢ
- slice of the base falling in bracket i, measured in minimum wages.
- aᵢ
- statutory rate of bracket i (§3, items I to V).
- SM
- minimum wage in force on the date of the liquid judgment (§4, IV).
The practical consequence of staggering is that the effective rate falls the larger the case. Whoever beats the Treasury in a 200-minimum-wage condemnation gets up to 10% at the floor; whoever wins a 500-thousand-minimum-wage one gets an effective rate below 1.5%, because only the first slice pays 10% and the bulk of the base falls into the lower brackets. The chart shows that regression, always at the legal floor of each bracket.
View the data
| Category | Value |
|---|---|
| 200 MW | 10% |
| 2,000 MW | 8.2% |
| 20,000 MW | 5.32% |
| 100,000 MW | 3.46% |
| 500,000 MW | 1.49% |
Two examples with the arithmetic on screen
Example 1, succumbence between private parties. On a R$ 90,000.00 condemnation, the §2 band is 10% to 20% and applies to the whole base, with no staggering. At the floor, 10% = R$ 9,000.00; midway, 15% = R$ 13,500.00; at the ceiling, 20% = R$ 18,000.00. That is all. If there is an appeal and the court raises the award for the additional work (§11), the increase is added, provided the total does not exceed the ceiling of the knowledge phase.
Example 2, Public Treasury, with staggering. Suppose a condemnation of 2,500 minimum wages, with a liquid judgment handed down in 2026 (MW = R$ 1,621.00), i.e., a base of R$ 4,052,500.00. It crosses three brackets. At the legal floor of each one, the bracket-by-bracket math is:
| Bracket (§3) | Slice in the bracket (MW) | Rate (floor) | Fees (MW) | Fees (R$) |
|---|---|---|---|---|
| I, up to 200 | 200 | 10% | 20 | 32,420.00 |
| II, 200 to 2,000 | 1,800 | 8% | 144 | 233,424.00 |
| III, 2,000 to 2,500 | 500 | 5% | 25 | 40,525.00 |
| Total | 2,500 | 7.56% (effective) | 189 | 306,369.00 |
Notice what staggering prevents: if someone applied a single 10% over the 2,500 MW, they would reach 250 MW (R$ 405,250.00). The correct sum, bracket by bracket, gives 189 MW (R$ 306,369.00), nearly R$ 99 thousand less. The 7.56% effective rate is lower than the 10% of the first bracket precisely because only the first 200 MW paid 10%; the rest fell into the 8% and 5% brackets. This is the heart of the mistake the succumbence fee calculator removes by building the calculation memo automatically.
Once set, fees are updated over time by index and interest, like any credit, the guide monetary correction and interest: the official indices explains which index tends to apply and why SELIC is not added on top of interest. And, like any calculation with rigid deadlines, the fee dispute runs within the procedural deadlines of the CPC.
Alimentary nature, enforcement and the history of the rule
Once fees are set, three guarantees protect the lawyer. First: succumbence is theirs, with an autonomous right to enforce that part of the judgment (art. 23 EOAB). Second: the decision setting the fees and the written contract stipulating them are executive titles and a privileged credit in bankruptcy (art. 24). Third: fees have an alimentary nature. Art. 85, §14 is explicit, "they constitute the lawyer’s right and have an alimentary nature, with the same privileges as credits arising from labor law, offsetting being forbidden in the case of partial succumbence." That is why, in reciprocal succumbence, one lawyer’s fee is not deducted against the other’s: each receives their own.
Against the Public Treasury, the alimentary nature has a practical effect on payment. Binding Precedent 47 of the STF held that "attorney fees included in the condemnation or separated from the principal amount owed to the creditor constitute a credit of an alimentary nature, satisfied through the issuance of a precatório or small-value requisition, observing a special order restricted to credits of that nature." In other words, the fees follow their own precatório/RPV, in a special order, they are not tied to the party’s principal credit.
- Jul 1994OAB Statute (Law 8,906)
Consolidates the three kinds (art. 22), assigns succumbence to the lawyer (art. 23) and creates the executive titles (art. 24).
- Mar 2015New CPC (Law 13,105)
In force since March 2016, it details succumbence in art. 85: 10% to 20% (§2), Treasury brackets (§3 and §5), recursal fees (§11) and alimentary nature (§14).
- May 2015STF Binding Precedent 47
Approved on May 27, 2015 (published June 1, 2015): fees have an alimentary nature and are paid by precatório/RPV in a special order.
- 2015New Code of Ethics (Resolution 02/2015)
In force since September 2016, it makes the table floor mandatory (art. 48, §6) and disciplines quota litis (art. 50).
How do the §11 recursal fees work?
When ruling on an appeal, the court raises the fees already set, considering the additional work done at the appellate level (art. 85, §11). There is a limit: in the overall computation, the winner’s lawyer’s fees cannot exceed the ceilings of §§2 and 3 set for the knowledge phase. So the recursal increase is not unlimited, it only fills whatever room still remains up to the legal ceiling.
Do the minimum-wage brackets violate STJ Precedent 201?
No. STJ Precedent 201 says "attorney fees cannot be fixed in minimum wages", that is, the fee cannot be expressed and paid as "X minimum wages", which would peg it to that index. But art. 85, §3 uses the minimum wage only as a ruler to define which bracket the case falls into; the result is converted to reais by the minimum wage at the judgment date (§4, IV) and paid in reais. The ruler and the currency are different things, so there is no conflict.
Is there a limit on contingency fees (quota litis)?
Yes. Art. 50 of the Code of Ethics requires that, in a quota litis clause, fees be represented in cash and that, added to succumbence fees, they not exceed the advantages obtained for the client. In other words: the lawyer cannot end up receiving more than the client actually won. Taking a share of the client’s assets is allowed only exceptionally, when the inability to pay in cash is proven.
If the table is a floor, can I charge anything above it?
Charging above the table is free (art. 22 EOAB), but not unlimited in the abstract: art. 49 of the Code of Ethics requires setting fees with moderation, considering the complexity of the case, the economic value, the client’s means and local practice. The floor protects the profession against undercutting; moderation protects the client against excess. That is why a clear written contract, with a well-defined model, avoids disputes on both sides.
Frequently asked questions
Is the OAB table mandatory and valid across all of Brazil?
Do succumbence fees reduce what I agreed with my lawyer?
How is succumbence against the Public Treasury calculated?
What happens when there is no written fee agreement?
Do attorney fees have an alimentary nature?
Is there a limit on a contingency (quota litis) fee?
Separate the three kinds: contractual (free, art. 22 EOAB), succumbence (CPC art. 85, paid by the loser to the winner’s lawyer) and arbitrated (by the judge, without a contract, never below the table). The OAB table is an ethical floor per section (CED, art. 48, §6), not a national ceiling. Succumbence between private parties is 10% to 20%; against the Treasury, staggered brackets summed bracket by bracket. It belongs to the lawyer (art. 23), has an alimentary nature (§14; BP 47) and does not offset the contractual fee. Redo the math in the succumbence fee calculator and confirm your section’s current table.