Introduction
The efficient running of the judicial procedures by the court requires that the conduct of its intervenors is based on good faith.
Therefore, the legislator instituted the litigation of bad faith as a mechanism of policing the process, incurring on it all the intervenors in the process that maliciously submit unfounded pretension or opposition, alter the truth of the facts or omit essential facts and those who make a reprehensible use of the process or of the procedural means, with the purpose to attempt against the materialization of the justice.
Well, considering that the parties in a process are assisted by attorneys, considering that the procedural acts are practiced by these (attorneys) and that the Mozambican Bar Association has the exclusive disciplinary jurisdiction over them (the attorneys), it is important to discuss the treatment to which they are subject when is known that they have contributed personally and directly in the acts through which the bad faith was revealed.
Therefore, we’ll discuss the matter in question in the sections I and II below. In the section I, we’ll make the approach of the concept, the requirements and the nature of the ligation of bad faith, in order to arm ourselves with the grounds to make the approach, in section II, of the attorneys’ disciplinary liability for litigation of bad faith.
Said that, we’ll proceed with our discussion as following:
I. Concept, requirements and nature of the ligation of bad faith
I.1. Concept of litigation of bad faith
The legislator defines litigant of bad faith, in the article 456/2 of the CCP (Code of Civil Procedure) as the person who has submitted pretension or opposition without ignore the lack of its grounds, as well as the person that consciously altered the truth of the facts or omitted the essentials facts and the person who have made a use manifestly reprehensible of the process or of the procedural means, with the aim to reach an illegal purpose or to manipulate the action of justice or obstruct the discover of the truth.
I.2. Requirements of the ligation of bad faith
The concept of litigant of bad faith requires that the litigant practice an illicit fact previewed in the law, that he acts with malicious and that he has the purpose to attempt against the materialization of justice.
1.2.1. Practice of illicit fact previewed in the law
The litigation of bad faith requires the practice of the illicit facts previewed in the law, because only the conducts previewed in the article 456/2 of the CCP are relevant for its verification, namely the submission of pretension or opposition without grounds, the alteration of the truth of facts, the omission of the essential facts and the reprehensible use of the process and the procedural means.
1.2.2. Actuation with malicious
The litigation of bad faith requires that the litigant act with malicious in the practice of illicit facts previewed in the law, considering that, in all of them (in the illicit facts previewed in the law), is demanded that the litigant is aware of the disconformity of his actuation. The malicious may be substantial or instrumental.
The substantial malicious is related to the merit of the cause, in other words, to the material jural relation or to the substantive law[1]. Therefore, the litigant uses the malicious or bad faith to obtain a decision of merit that does not correspond to the truth and to the justice[2]. In the provision of the article 456/2 of the CPC, the substantial malicious consists in the knowledge of lack of grounds, in the conscious alteration of the truth of the facts or in the conscious omission of the essential facts[3].
The instrumental malicious is related to procedural jural relation. The litigant acts in order to bore and to tire his adversary, or with the spirit to harm, or with the reprehensible expectative to demoralize him, to weaken him or to drive him into an unjust transaction[4]. In the provision of the article 456/2 of CCP, the instrumental malicious consists in the use manifestly reprehensible of the process or of the procedural means.
Therefore, the negligent conducts are not susceptible to consubstantiate litigation of bad faith.
1.2.3. The aim to attempt against the materialization of the justice
The aim to attempt against the materialization of the justice, as a requirement of the litigation of bad faith, reflects in the fact that the litigant direct his conduct to reach an illegal purpose or to obstruct the discover of the truth.
1.3. Nature of the ligation of bad faith
The litigation of bad faith is a public procedural institute that has the immediate purpose of policing the process: it corresponds to a proper sanctionary subsystem, with a limited scope and with very practical and restrict purposes[5]. It is not a manifestation of the civil liability, with purpose to supress damages caused, illicitly and guiltily, to another person, through procedural acts: the litigation of bad faith may even run officiously[6].
The litigation of bad faith is different from the civil liability for illicit facts, considering that: a) In respect to the illicit fact, only the conducts previewed in the article 456/2 of the CCP are relevant – any other conducts are not relevant; b) In respect to the damage, it is not required – the conduct is sanctioned, regardless of its result; In respect to culpability, it is necessary the verification of the malicious – the negligence is irrelevant.
II. The disciplinary liability of the attorney for litigation of bad faith
The attorney is an indispensable ground of the administration of justice. Therefore, the attorney has the duty to adopt a public and a professional behaviour that do not collide with duties stated in the law, in the professional uses, customs and traditions [article 72, of the Statute of the Mozambican Bar Association (SMBA)].
The duties of the attorney are, essentially, previewed in the SMBA, among them are the duties:
i) To not advocate against the law or not use illegal means or expedients, neither to promote diligences manifestly dilatory, useless or prejudicial to the correct application of the law or to the discover of the truth [article 76, paragraph c), of SMBA];
ii) To stand up for the good application of the law, for the rapid administration of the justice and for the improvement of the jural institutions [article 76, paragraph d), of SMBA];
iii) To give a conscious opinion to his constituent on the legal framework applicable to his pretensions [article 8, paragraph c), of the SMBA];
iv) To act with major loyalty, not sicking to obtain illegal or undue advantages for his constituents [article 85, paragraph c), of SMBA].
The duties in mention have the characteristics of the conducts sanctioned in the scope of the litigation of the bad faith, according to the approach we made on the section I above, considering that:
- The duties mentioned in the paragraphs i), ii and iii) have characteristics of the duties to not submit unfounded pretension or opposition, to not alter the truth of the facts or omit the essential facts and to not make a use manifestly reprehensible of the process or of the procedural means.
- The duty mentioned in the paragraph iv) have the characteristic of the duty to not litigate to reach illegal purposes or to manipulate the action of justice or to obstruct the discover of the truth.
The violation of the duties in mention consubstantiate in the committing of infractions, susceptible of institution of disciplinary proceeding by the Mozambican Bar Association (MBA) that may end with the application of disciplinary sanctions to be graduated considering the professionals and disciplinary records of the attorney, of his degree of culpability, of the consequences of the infraction and further aggravating and extenuating circumstances (article 92, 99 and 100 of the SMBA).
Well, according to the article 459 of the CCP, “when is known that the attorney of the party had personal and direct responsibility in the acts through which the bad faith was revealed, the fact is reported to the MBA in order to apply the respective sanctions and condemn him to the portion of court’s fees, fine and indemnity that may seem just”.
Therefore, from the article 459 of the CCP, we may extract the following requirements for the liability of the attorney for litigation of bad faith:
a) It is necessary that the attorney have had personal and direct responsibility in the acts of bade faith
The personal and direct responsibility of the attorney in the acts of bad faith requires, in its turn, that the court have concluded, in first place, that his constituent have litigated in bad faith. Only after that may be possible to verify if the attorney had any responsibility in the practice of those acts.
Are examples of personal and direct responsibility of the attorney in acts of bad faith, the following situations in which:
a.1) The attorney institute an action to request a price, after the declaration that said price was received; or apply for a seizure invoking a debt that was previously declared paid[7] – in these situations the attorney act with substantial malicious;
a.2) The attorney present allegations of appeal manifestly unfounded or use the appeal with the purpose manifestly dilatory (article 676/3 of the CCP), appealing, for example, against a decision of the court with violation of res judicata – in this situation, the attorney acts with instrumental malicious.
b) It is necessary that the acts of bad faith are reported to the MBA for application of sanctions and condemnation of the attorney to the portion of the court’s fees, fine and indemnity
This requirement is aligned with the article 94/1 of SMBA, which states that the courts and other entities must report to the MBA the practice, by the lawyers, of facts susceptible to constitute disciplinary infraction.
The report that is given to MBA has to do with the fact that it (the MBA) has the exclusive disciplinary jurisdiction over the attorneys. This means that the MBA is competent, in face of the reported facts, to conclude for the existence or non-existence of the circumstantial evidence of committing the disciplinary infraction by the attorney and, consequently, for the institution or not of the disciplinary proceeding against him [article 4, paragraph i), and article 91 of the SMBA]. In the organic structure of the MBA, it competes to the Jurisdiction Council to exercise the disciplinary action against the attorney (articles 36, 39 and 91 of the MBA).
Therefore, the courts may report the facts in mention to MBA with conviction that they constitute conducts that breach the duties of the attorney and that they reflect his personal and direct responsibility in the litigation of bad faith, but the MBA is not bounded to these value judgement and may conclude for non-existence of circumstantial evidence of committing the disciplinary infraction and, consequently, conclude for dismissing of the proceedings.
Conclusion
The attorney may have disciplinary liability for litigation of bad faith through a disciplinary proceeding instituted in that way, folowing a participation made to MBA by the courts, pursuant to the articles 459 and 94 of the CCP and of the SMBA, respectively.
In case the MBA conclude on the existence of circumstantial evidence of commiting disciplinay infraction by the attorney and the consequent institution of the disciplinary proceeding, the MBA may apply the sanctions stated in the SMBA and condemn the attorney in the portion of the court’s fees, fine and indemnity, according to the produced evidence.
The MBA appreciate freely and independently the participation made by the court imputing the attorney of practicing acts of bad faith. This means that the MBA may start a disciplinary action against an attorney and conclude for the non-existence of the circumstantial evidence of committing the disciplinary infraction by him, dismissing the participation grounded on that.
[1] DOS REIS, Alberto, Código do Processo Civil Anotado, Volume (Vol.) II, 3rd Edition (Ed.), Coimbra Editora, page (p.) 263.
[2] DOS REIS, Alberto, opus (op.) citatum (cit.), p. 263.
[3] CORDEIRO, António Menezes, Litigância de Má-Fé, Abuso do Direito de Acção e Culpa in Agendo, 3ª Ed., Almedina, 2014, p. 58.
[4] DOS REIS, Alberto, op. cit., p. 264.
[5] CORDEIRO, António Menezes, op. cit., p. 70.
[6] CORDEIRO, António Menezes, op. cit., pages (pp.) 70 e 71.
[7] CORDEIRO, António Menezes, op. cit., pp. 63 e 64.
