Are lawyers public officials when issuing a legal opinion at the request of the State of Peru?

Wilfredo Murillo: “Rarely in Latin America has there been this figure of charging legal services operators with responsibility for their legal opinion. Since it is not normal for us to be recognized as public officials, we should not be held responsible for acts of the State”

On July 5, 2022, the Peruvian Attorney General’s Office published a press release announcing that the ad hoc Prosecutor’s Office for the Lava Jato case “had achieved” that the Judicial Power included Estudio Echecopar in the investigation of the “Gasoducto Sur Peruano II” sub-case, as published by Idealex in an article in which our partner Wilfredo Murillo participates.

The Attorney General’s Office wants this firm to assume a monetary reparation as a responsible civil third party, “which should be paid at the end of the criminal process”.

As indicated by the media, the argument that justifies this decision goes back “to the bidding process for the award of the “Gasoducto Sur Peruano” project in 2014, in which one of the bidders did not comply with all the rules for the presentation of the project, in view of which the Private Investment Promotion Agency (Proinversión) consulted its internal lawyers to make a justified disqualification decision. The consequence of disqualifying one of the participants was to consider the other winner: the conglomerate formed by Odebrecht – now Novonor and Enagas”.

But this is not the only thing alleged by the Attorney General’s Office, which explains that Proinversion also hired Estudio Echecopar to offer its opinion in a legal report, which supported the thesis that the disqualification of the bidder was valid and legal.

“Now, eight years later and after the Lava Jato Case shook several Latin American countries, the two professionals who signed the report hired by the state agency are investigated for the crime of taxed collusion, a measure that took as a basis the following: by preparing the report, the lawyers would have become public officials who made a decision against the interests of the State of Peru. As both are part of Estudio Echecopar and the report was issued in the name of the firm, the Attorney General’s Office demands that the firm pay US$ 1,302,354,891 and PEN 200,603 (Peruvian soles) as a civilly liable third party, for the damages derived from the crime of collusion”.

Our partner Wilfredo Murillo answers the questions from Idealex

Idealex has consulted lawyers, academics and market analysts, including Wilfredo Murillo, on the impact of legal arguments on the legal industry.

“Rarely in Latin America has there been such a figure of charging legal services operators with responsibility for their legal opinion. Since it is not normal for us to be recognized as public officials, we should not have a responsibility for acts of the State” he says.

Murillo is concerned that the effects of the case go beyond and affect other firms, “since there would have been for a long time an unnecessary search by the Judiciary to justify the participation of some firms in cases in which they have visibly had no participation”. He adds that “there is a general concern among the firms that if this line is followed, there will probably be many recognized firms that will avoid working with the State in order to avoid any type of subsequent accusation, which will end up being the most damaged by not being able to count on the participation of high profile firms in projects of great value”.

He also considers that law firms must “understand that we still maintain this social link of corruption with our profession, so society will feel that we are indeed colluding, since it is enough that they indicate us for them to believe that we are being investigated. We have to work very hard to counteract this”.

To conclude, the Marketing and Communications specialist explains that, in his opinion, the response offered by the firm by publishing a press release was adequate; however, they should have done a more comprehensive job in terms of conveying their version of the facts to society, which does not always understand what the lawyer’s job is.

If you want to read the full article in Idealex, click here.