Have you ever had any difficulty with Japanese lawyers? If so, perhaps this stems from the differences between lawyers in other countries and those in Japan. One significant distinction is that, unlike solicitors in the UK, for example, lawyers in Japan are not supposed to provide any business advice according to the country’s Attorney Act (Bengoshi-ho).
Article 3 of this act specifies an attorney’s role as solely dealing with litigations, legal disputes and “other general legal services”. While the term “other general legal services” is vague, it is generally construed to mean legal work concerning disputes, rather than that involving the giving of business advice.
Most Japanese lawyers lack the skills to provide such business advice. In fact, the Japanese Federation of Bar Associations (JFBA) states that lawyers who want to be directors of business corporations, for example, are required to get approval of the JFBA.
Such approval may not be given if the JFBA believes that the firm in question is not conducting an appropriate business in which lawyers can be involved in on this basis.
Before judicial reform, which included the launch of new law schools in 2004, and Japan’s new bar examination in 2006, only a few of those who had sat for the bar exam passed it—usually less than 2%. The average age of those who passed was 29 years old, despite them having graduated at the age of 22.
During this interim period, the majority of exam applicants concentrated their efforts on passing the bar exam—considered one of the most difficult exams in Japan—working only in a part-time job for cash or receiving financial support from their parents. This resulted in exam applicants having a lack of experience of working in other industries.
Moreover, most law students who really wanted to be legal specialists did not attend classes on, or study, any subjects not directly relevant to the bar exam.
In terms of the scholars, one could say they observed imperial Japan’s totalitarian legal education system, thereby preserving their supervisor’s legal doctrine for decades without studying sufficiently the evolution of the world’s legal theories.
In addition to existing law schools that have an undergraduate programme of four years’ duration, following the reforms of 2004 and 2006, law schools with a graduate programme were established. Except for small numbers of special cases, only graduates of the new graduate law school programme are now eligible to take the bar exam.
By having this system, it was expected that, rather than solely have experience of the law, the majority of bar exam applicants would have a background in their undergraduate subject of study, in the sciences or arts, and/or life experience, as bar exam applicants in the United States do.
However, recent statistics show that only about 20% of bar exam applicants have such backgrounds or experience; rather simply the total number of applicants who have passed the new bar exam has increased.
A further problem regarding the bar exam is that applicants are never tested on ethics. In addition, the JFBA’s code of conduct for its registered members does not have clauses that sufficiently cover conflict of interest, nor does it have a competence or a whistle-blower clause for lawyers.
Furthermore, the JFBA insists that the submission of suspicious transaction reports by lawyers may destroy the relationship of trust between them and their clients.
Maybe this move to increase the number of lawyers having various specialities other than expertise solely in legally related subjects was right, but the result has been an increased number of lawyers without enough business experience—which is what was originally sought—who are eventually forced to work for low salaries.
As the Japanese tend to avoid litigation in favour of compromise, litigation-based education does not sit well with their social values. Thus, although self-confident lawyers can be found, the mismatch between the legal systems of Japan and other countries has caused many inconveniences, including the limited number of lawyers who meet international requirements.
The best way forward for those seeking business advice in Japan may well be to approach a bilingual consultant with good knowledge of international business laws.
