Confidentiality of Communication between Clients and Attorneys(so called legal professional privilege or attorney client privilege)in Conjunction with the Amendments to the Anti-Monopoly Act
Today, the Diet passed a bill amending the Anti-Monopoly Act ("AMA") to reform the surcharge system.
On March 12th, 2019, when the Cabinet approved the bill, the Fair Trade Commission of Japan ("JFTC") published a document entitled "Treatment of Confidential Communications between Clients and Attorneys" as Attachment 2 to the proposal. According to that document, the JFTC would introduce a new regime ("Regime") where officers involved in the investigation would not have access to such documents that contain contents of confidential communications between clients and attorneys regarding legal opinions on cartels (the latter half of Article 3 of the AMA), subject to certain conditions and procedures. The Regime will be introduced by way of amendments to the regulations under Article 76, Paragraph 1 of the AMA and implemented as of the date when the amended AMA takes effect.
The Japan Federation of Bar Associations ("JFBA") has consistently requested the protection of confidentiality of communications between clients and attorneys. The JFBA appreciates that the Regime consents to this protection in relation to cartel investigations. The JFBA also expects that the JFTC will elaborate on the Regime in the regulations and in the administrative guidance. The JFBA hereby requests that the Regime should ensure free and frank consultation and legal advice in light of the purposes of the Regime, being the due process through the protection of confidentiality of communications between clients and attorneys.
In consideration of the purpose of the Regime, the scope of confidential communications should be determined by the nature and purpose of documents and that electronic data should also be included in these protected documents. The JFBA will closely monitor the rule making process and publish opinions from time to time.
The JFTC proposes that the Regime is introduced only in relation to cartel investigations and not for any other type of antitrust enforcements. The Regime should also protect communications with the corporation’s counsel and not with counsels of other parties. Such restrictions are neither heard of in other jurisdictions nor are consistent with the purposes of the Regime. The JFBA hereby requests amendments to the proposal be made as soon as possible so that the Regime will be applicable to all areas of AMA enforcements and to communications with counsels of all parties.
June 19, 2019
Japan Federation of Bar Associations