You run a mid-sized company. Your in-house counsel is your daughter, also a lawyer. She has no client portfolio of her own — the company is her only client. She is present at every strategic decision: reviewing contracts, advising the board, attending governance meetings, drafting communications on behalf of the company. There is no formal legal department; there is her, with the corporate email account, integrated into the daily operations.
When a criminal investigation targets the company, in-house counsel becomes a natural target. The reasoning is straightforward: whoever participated in the decisions knows about the decisions; whoever knew about the decisions might have contributed to them; therefore, it is reasonable to investigate — and, eventually, to conduct a search. The search reaches emails, files, notes, communications. Legal work performed internally is treated as evidence within the investigation, not as protected activity.
Anyone who has read The Godfather or watched Coppola’s trilogy knows Tom Hagen — the consigliere of the Corleone family, adopted son of Vito, lawyer by training. Hagen is the cultural archetype of in-house counsel within a family structure, taken to a fictional extreme. Brazilian criminal prosecution tends to operate with a shallow reading of that archetype: the lawyer close to the family business is, by sheer proximity, presumed complicit. The reading is mistaken — and the Hagen case itself, examined carefully, proves the opposite. I will return to this point.
Before that, the normative framework must be set straight. The practice of law — regardless of contractual arrangement — is protected by Article 7, II, of the Brazilian Bar Statute (Law No. 8,906/94) and by professional secrecy under Article 5, XIV, of the Federal Constitution. The protection covers the content of legal work, not the form of the relationship between lawyer and client. In practice, however, prosecutors operate with a different lens: they treat in-house counsel within family-owned businesses as members of corporate governance, not as lawyers.
The flawed lens of prosecution
Most Brazilian companies do not have a legal department in the idealized corporate format. In publicly traded corporations, in large limited liability companies, in multinationals operating in the country, the figure of the general counsel is clearly defined — formally appointed, reporting to a board, named in corporate minutes, with formalized compensation. For those companies, identifying in-house counsel is trivial.
For most Brazilian companies, it is not. The legal department is a partner who studied law. It is the entrepreneur’s daughter who took over legal matters after being admitted to the Bar. It is the brother-in-law, the heir, the family member with a legal background who has guided the company’s decisions for twenty years. There is no appointment minute. There is no formal employment contract. There is no service agreement. There is the function, performed with continuity and institutional identification — but without the formal elements that appear in corporate governance manuals.
Faced with this configuration, prosecutors tend to apply an implicit presumption: if the contractual relationship is not formal, there is no in-house counsel. And if there is no in-house counsel, there is no protection to invoke. The practical result is that the company’s actual legal advisor is treated, during the investigation, as just another suspect within the structure — someone whose communications, files, and dealings can be freely searched.
Even Tom Hagen would deserve protection
Back to Hagen. In the film and the novel, Mario Puzo and Francis Ford Coppola do not portray him as a villain. Hagen is treated with professionalism, institutional loyalty, and intelligence. He is a lawyer — and that is how the narrative constructs him. The popular reading of Hagen as “the mob’s lawyer” in a pejorative sense is the viewer’s distortion, not the text’s.
Prosecutors, however, frequently operate with that popular version of the Hagen paradigm — the shallow reading of the character: the lawyer close to the family business is, by proximity, suspected of complicity. The lens is that of the film viewer, watching the narrative from outside, with the privileged perspective of knowing in real time what is going on in the Corleone family. Real investigators do not have that privileged perspective. They operate without narrative omniscience: they see communications, meetings, dealings — but they do not see the crime unfolding on a screen before them.
Here is the point that must be made clearly: even Tom Hagen — the extreme case, the fictional reference of in-house counsel within a criminal structure — would be entitled to the protection of attorney privilege if the prosecution failed to demonstrate, with concrete evidence, his direct participation in supervising the family’s criminal activities. Proximity is not evidence. Functional role is not evidence. Institutional loyalty is not evidence. Without concrete evidence of the crime and of the lawyer’s personal involvement, even the fictional mob consigliere would remain protected by professional secrecy.
If the rule applies to Hagen, it applies a fortiori to the overwhelming majority of in-house counsel in Brazilian family businesses — who have nothing of Hagen, who handle entirely legitimate matters, and who find themselves subjected to an investigative lens that presumes complicity from mere proximity.
The Americanas precedent (Constitutional Complaint No. 57,996, STF)
The Brazilian Federal Supreme Court (STF) has already addressed this issue directly. In Constitutional Complaint No. 57,996, decided in 2023, the STF declared null the order of the 2nd Commercial Court of São Paulo, which had authorized a broad search and seizure of electronic correspondence of all directors, officers, and managers of the Americanas Group — including the company’s in-house and outside counsel. The Court held that the inviolability of legal practice, set forth in Article 7, II, of Law No. 8,906/94, extends to in-house counsel on equal footing with outside counsel. The contractual arrangement is irrelevant to the protection: what professional secrecy shields is not the form of the relationship, but the nature of the activity.
The precedent arose in the context of a publicly traded corporation with an elaborate corporate structure, an institutionalized legal department, and contractually identifiable in-house counsel. Precisely for that reason, the Court’s reasoning applies a fortiori to smaller structures. If even within a publicly traded corporation the STF found it necessary to declare the search null — because the lens of prosecution cannot conflate counsel with target — the same logic must operate, with greater force, in family-owned limited liability companies, in sole proprietorships with in-house counsel linked to the owner, and in structures where the in-house lawyer is a relative of the entrepreneur. The vulnerability of those structures is greater; the protection of Article 7, II, of the Bar Statute must reach them with equal or greater intensity.
The STF’s reasoning is consistent with ADI 1,127 (Direct Action of Unconstitutionality), the landmark decision on the inviolability of legal practice, and with the consolidated case law on professional secrecy as an instrumental privilege — not as a corporate prerogative of lawyers, but as a citizen’s guarantee of access to legal advice with confidence. Without that protection, no one would consult a lawyer.
Operation Lava Jato (“Car Wash”) produced related precedents. The case of Maurício Ferro, former general counsel of Odebrecht, led to the recognition of the nullity of wiretaps between lawyers and clients obtained during the operation. Constitutional Complaint No. 36,542, concerning the 14th phase of Lava Jato against Odebrecht, reaffirmed attorney privileges against attempts to criminalize the practice of law. In 2024, Justice Dias Toffoli declared null various acts of the operation against Marcelo Odebrecht — a position later confirmed by the full bench of the STF.
Proving the relationship in family-owned structures
The most sensitive technical issue in defending in-house counsel within a family business is proving the relationship. In departmentalized structures, the appointment minute or formal contract resolves the matter. In leaner family structures, the relationship must be demonstrated by other means.
The Corporate Counsel Commission of the Bar of Paraná, recently elevated to permanent status — the only commission of the Bar in the state with admission restricted to in-house counsel — has been working on this issue. Structural integration can be demonstrated through multiple means: a corporate email signature, an institutional business card, documented participation in governance meetings, a continuous and exclusive relationship with the company, identification as legal representative in external correspondence, the absence of any other client portfolio beyond that structure.
What matters, from the standpoint of protection, is not the formal label. It is the demonstration that the person, in fact and with continuity, performs the role of counsel to the structure. Whoever practices law — even for a single client, and even if that client is a family company run by her own father — is a lawyer, and her activity is protected by Article 7, II, of the Bar Statute.
The burden of proof lies with the prosecution
There is a principle that must be reaffirmed with force: the burden of demonstrating an attorney’s concrete participation in criminal activity lies with the prosecution, not the defense. In-house counsel does not have to prove that she is not complicit. It is for the Prosecutor’s Office and the police to demonstrate, with concrete evidence of the crime and of the lawyer’s involvement, that this specific person — in this specific hypothesis — participated in the criminal conduct. Without that demonstration, there is no basis to set aside inviolability. The standard applies to the general counsel of a multinational, to the lawyer-daughter of a mid-sized entrepreneur, and — at the fictional extreme — it would apply to Hagen as well.
Practice, regrettably, operates the other way around. The implicit presumption of police operations is that every lawyer close to the investigated corporate structure participated, to some degree, in the decisions being questioned. That presumption contaminates the search warrant request, contaminates the execution of the measure, contaminates the subsequent analysis of the seized material. Defending in-house counsel becomes, in practice, a battle against a diffuse suspicion that has materialized into a judicial order.
I have previously analyzed on this blog how this criminalizing logic operates expansively in organized crime charges — and how it spills over from the fight against truly criminal structures to reach legitimate corporate environments. The intrusion upon in-house counsel is one of the most sensitive manifestations of that phenomenon, because it affects not only the individual professional, but the institutional possibility of a company having access to internal legal counsel. That risk materializes, frequently, at the concrete moment of an unannounced visit by law enforcement — when the first institutional reaction can determine the actual scope of what will be searched.
In defense of in-house counsel
There is a striking asymmetry in the cultural reception of Tom Hagen. In film and literature, he is treated with dignity — Coppola and Puzo construct him as a complex character, competent professional, loyal to the values of the family that adopted him. In the prosecutorial-policing imagination, the same Hagen becomes synonymous with complicity. The fictional figure is reappropriated as justification for suspecting any in-house counsel whose relationship with the corporate structure goes beyond the formal, impersonal bond. The loss in that reappropriation is the character himself: in the original version, Hagen is a lawyer, not a criminal in disguise.
The practice of law in a corporate environment — whether in-house or outside — is an essential part of the rule of law. Every serious company needs legal counsel at some point. Every meaningful strategic decision involves, to some degree, legal analysis. Every governance worthy of the name includes the presence of counsel at the tables where decisions are made.
Legal counsel from within the company performs functions that outside counsel cannot perform in the same way. Continuity. Deep knowledge of the business. Capacity for preventive action. Speed of response. Integration with operations. These attributes do not make in-house counsel a conspiratorial insider — they make her a specialized professional providing quality legal advice within a specific structure.
The entrepreneur’s daughter who joined the Bar and took charge of the family company’s legal matters is not a hidden partner in any scheme. She is a lawyer doing her job. The partner who studied law and advises the limited liability company’s decisions is not an accomplice hiding behind a professional title. He is a lawyer within the corporate structure of which he is also part. The heir who returned to the family business to handle legal affairs is not an automatic suspect for the simple fact of carrying the family name. He is a professional exercising a function recognized by law.
The protection of Article 7, II, of the Bar Statute does not exist to shield lawyers. It exists to ensure that any citizen — including the entrepreneur, including the family business — can seek legal advice with the certainty that this consultation will not be used against them. Without that guarantee, access to legal counsel becomes a risk in itself. And without accessible legal counsel, there is no meaningful defense.
The presumption that must operate regarding in-house counsel is the presumption of legitimacy. It applies to the fictional consigliere. It applies a fortiori to real in-house counsel — who represent legitimate companies, within legitimate family structures, under legitimate arrangements. The exceptional case, when it exists, requires concrete evidence. It cannot be used as a retroactive filter to search anyone who legitimately performs the role. Without that protection, there is no in-house counsel. And without in-house counsel, an essential part of Brazilian corporate governance is lost.
Guilherme Brenner Lucchesi is a criminal defense attorney, holds a doctorate in Law from UFPR, an LL.M. from Cornell Law School, is a professor of Criminal Procedure at the Federal University of Paraná (UFPR), president of the Paraná Institute of Lawyers (IAP), and founding partner of Lucchesi Advocacia.
