The Japanese Attorney System
|1.How Attorneys Function in Japan|
(1)The Mission of Attorneys
The Attorney Act defines the mission of attorneys as "protecting fundamental human rights and ensuring social justice" (Article 1). In other words, attorneys have a mission to protect the fundamental human rights of the people and to work for social justice regardless of whether they are in the courtroom, and as such are required to provide quality legal services.
The Attorney Act also gives attorneys exclusive rights to provide legal services unless explicitly stated to the contrary. Representatives for the parties, when selected, must be qualified attorneys in order to argue cases at the district court level and higher. In addition to prohibiting unqualified persons from providing legal services, the law also defines unauthorized practice of law as a criminal activity. With this exclusive right to provide legal services, attorneys therefore also assume an obligation to adequately represent and serve their clients, the people of Japan.
(2)Broadening the Scope of Activities
As part of the judicial reforms, there has been a substantial broadening of the scope of activities open to attorneys. Japan is moving from "small-scale justice" to "large-scale justice", and the activities of attorneys, the chief players in the judicial system, are broadening. Attorneys have an obligation to extend the rule of law to all facets of society.
To help make this possible, institutional reforms have removed the requirement for prior permits when attorneys engage in for-profit activities; they now need only file notifications. Likewise, the assumption of public services by attorneys has been liberalized. There are now provisions by which attorneys can retain their bar qualifications while becoming involved in government administration and legislation as public servants with limited terms, which opens up new avenues for their activities. There is also a system to appoint attorneys both as full-time judges and as "part-time judges", where they retain their status as attorneys but also serve on the bench part of the time.
In addition, the venues for attorney services are no longer limited to the traditional courtroom. More attorneys are offering alternative dispute resolution (ADR) services, preventative legal services, and also corporate legal services as in-house counsel.
(3)Forms of Legal Practice
Over 60% of all law offices are still run by solo-practitioners, but urban areas are seeing an increase in the number of joint offices involving several attorneys, and more than half of all attorneys in Japan now belong to such joint offices. Further, large legal offices with 400 or more attorneys on staff have emerged.
Attorney's Lapel Pin
A Silver-colored scale is positioned at the center of a gold-colored sunflower. The sunflower symbolizes justice and liberty, and the scale symbolizes fairness and equality.
To become qualified to practice as an attorney, judge, or prosecutor, one must complete a law school curriculum, pass the bar examination, and complete a one-year apprenticeship at the Legal Training and Research Institute of the Supreme Court. The new system that requires graduation from law schools as a qualification for the bar examination started in April 2004 (see IV-4, "Professional Legal Training and Education"). Under the old system, anyone could take the bar examination, but this system will end in 2010. In 2011 Japan will also institute another system under which candidates will be able to sit for the bar examination by passing a preliminary test even if they have not completed law school. As special exceptions, candidates with practical experience in the law as defined by the Attorney Act and candidates that have served as professors and assistant professors at law schools after passing the bar examination may be qualified as attorneys without completing a one-year apprenticeship but after completing a training course assigned by the Minister of Justice and being certified by the Minister of Justice.
Attorneys, judges, and public prosecutors are distinct statuses that cannot be held by the same person at the same time, but they receive the same basic education and training, making it possible for judges and prosecutors to become attorneys and vice versa. Japanese citizenship is not required to qualify as an attorney.
Once qualified, candidates must register with the JFBA in order to practice as attorneys. In addition to becoming members of the JFBA, attorneys must also join the local bar association where their practices are located and they come under the supervision of both organizations.
Qualified attorneys from other countries may receive the status of "registered foreign lawyers" (gaikokuho-jimu-bengoshi) if approved by the Minister of Justice. Certain requirements must be met, including at least three years of practical experience in their home countries. After approval by the Minister of Justice, qualified foreign attorneys may only practice law as gaikokuho-jimu-bengoshi by registering with the JFBA. As such, they are authorized to provide legal services with respect to the laws of the country in which they have the status of attorney (country of primary qualification) and other countries designated by the Minister of Justice (designated countries). They may also provide legal services with respect to the laws of third countries provided they receive written advice from persons meeting certain requirements. Finally, gaikokuho-jimu-bengoshi may represent clients in international arbitration proceedings.
On the other hand, gaikokuho-jimu-bengoshi are barred from practicing certain aspects of the law, for example, representing clients in proceedings at Japanese courts or government agencies, even if they are related to the laws of the country in which they have the status of attorney or other countries designated by the Minister of Justice.
A gaikokuho-jimu-bengoshi may employ a bengoshi but is neither allowed to handle legal services beyond the scope of practice permitted nor give an order related to such legal services to the bengoshi whom she/he employs. A gaikokuho-jimu-bengoshi may also operate a joint legal practice with a bengoshi. However, when operating such legal practices, gaikokuho-jimu-bengoshi are prohibited from inappropriate involvement in legal services outside the scope of their qualifications.
Information for Gaikokuho-Jimu-Bengoshi
(1)Self-Governance of Attorneys
The JFBA and the local bar associations have a high degree of self-governance. They have self-governance in that they are empowered to examine the qualifications of and take disciplinary action against attorneys, and the activities of attorneys and their regulations do not fall under the supervision of the courts, public prosecutors or administrative institutions. Bar associations differ from other professional associations in that they are not governed by a regulatory agency and from a financial perspective are operated entirely from dues and other revenues collected from members. Self-governance is essential to maintaining the independence of the legal profession because the legal services provided by attorneys may at times require them to oppose the authority of the state. Therefore, bar associations are specifically responsible for: 1) screening and registering qualified attorneys and 2) providing supervision and, when necessary, disciplinary measures for attorneys. In addition, membership in bar associations is mandatory and unregistered attorneys are not allowed to practice law.
(2)Code of Ethics
In November 2004 the JFBA replaced its "Code of Ethics" with the new "Basic Rules on the Duties of Practicing Attorneys". These rules took effect in April 2005. It is essential that attorneys maintain the trust of society and the general public in order to strengthen the self-governance of bar associations. This requires that each individual attorney maintain high ethical standards and provide quality legal services. The Basic Rules on the Duties of Practicing Attorneys attempts to define both a code of ethics and a code of conduct for attorneys with chapters covering such issues as basic ethics, relationships with clients (confidentiality obligations and prohibitions against conflicts of interest), criminal defense, legal practice within organizations, joint practices, rules for legal professional corporations, and rules governing relationships with other parties, other attorneys and bar associations.
(3)Disciplinary Action against Attorneys
While attorneys in Japan do not fall under the supervision of any government power, they do submit to the disciplinary authority of their local bar associations and the JFBA. The following actions are subject to disciplinary measures: (1) violations of the Attorney Act or the Articles of Association of the local bar association or the JFBA; (2) conduct that jeopardizes the good order of or the trust in the bar associations; and (3) misconduct of a disgraceful nature, whether in the course of or outside professional duties. The Basic Rules on the Duties of Practicing Attorneys articulate the ethical and professional codes of attorneys and serve as effective guidelines for determining whether attorneys have committed "misconduct of a disgraceful nature".
Anyone may file a complaint for disciplinary action against an attorney with the local bar association to which the attorney belongs. When a complaint is filed, the bar association is obligated to initiate disciplinary procedures and have the matter investigated by its Discipline Enforcement Committee. If the Discipline Enforcement Committee finds the claim to be grounded, it passes a resolution calling for a formal investigation of the case by the Disciplinary Actions Committee and the bar association is obligated to have its Disciplinary Actions Committee conduct an investigation. Should it deem disciplinary action appropriate, the Disciplinary Actions Committee passes a resolution explicitly stating the disciplinary actions sought, and the bar association is obligated to discipline the attorney accordingly. There are four types of disciplinary sanctions that can be imposed: (a) disbarment (loss of qualification for a period of three years); (b) order to withdraw from the bar association (loss of status); (c) suspension from the practice of law for up to two years (no impact on status or qualifications); and (d) reprimand (no impact on status or qualifications). Attorneys who are subject to a disciplinary sanction may file a request for reexamination to the JFBA for cancellation of such sanction. In such a case, the JFBA Disciplinary Actions Committee conducts the reexamination. Regarding JFBA's decisions based on resolutions of the JFBA Disciplinary Actions Committee, attorneys may institute lawsuits for rescission of such decisions with the Tokyo High Court.
Should the party filing the complaint be dissatisfied with the decision made by the local bar association, including when the local bar association decides not to impose disciplinary sanctions based on the decision made by the Discipline Enforcement Committee or the Disciplinary Actions Committee, she/he may file an appeal to the JFBA, and the JFBA Discipline Enforcement Committee or Disciplinary Actions Committee will investigate. Should the JFBA Discipline Enforcement Committee find grounds for the complaint, then the JFBA refers the matter back to the original bar association (to its Disciplinary Actions Committee). Should the JFBA Disciplinary Actions Committee determine to impose punishment or to impose a heavier punishment, the JFBA shall impose its sanctions on the attorney.
Should the JFBA decide to reject the appeal based on a resolution by the JFBA Discipline Enforcement Committee, the filer may seek a review by the JFBA Board of Discipline Review. If the JFBA Board of Discipline Review passes a resolution finding grounds for a disciplinary investigation, the case is referred back to the Disciplinary Actions Committee of the original bar association.
At both the local and the Federation levels, the Discipline Enforcement Committee and the Disciplinary Actions Committee are comprised of members including those chosen from outside the bar association, such as judges, prosecutors, and other people such as scholars, as well as attorneys. The JFBA Board of Discipline Review which is the final ruling body is comprised of persons with specialized knowledge (other than current or past attorneys, judges, and prosecutors).
Disciplinary sanctions imposed by local bar associations and the JFBA are published in the JFBA's monthly journal, Jiyu to Seigi (Liberty & Justice) and the official government gazette.