Legal Ethics
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Justice System Reform and Legal Ethics in Japan
Kay-Wah Chan
To cite this article: Kay-Wah Chan (2011) Justice System Reform and Legal Ethics in Japan,
Legal Ethics, 14:1, 73-108, DOI: 10.5235/146072811796373041
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Legal Ethics, Volume 14, Part 1
Justice System Reform and Legal Ethics in Japan
Kay-Wah Chan*
INTRODUCTION
Japan, whilst being an advanced economy, is widely known for her very small number of
attorneys (‘bengoshi’).1 In 1994, for every million members of the population, Japan had 122
bengoshi while the USA and Germany had 3,130 and 837 lawyers respectively.2 This is because
an extremely small number of candidates are permitted to pass the National Legal
Examination in Japan.3 The bengoshi profession as a whole has traditionally opposed
significant increases in their number,4 usually on the basis of ‘concerns over quality or
ethics’.5 Prior to the justice system reform movement in the late 1990s (discussed below),
discussions about the number of legal professionals in Japan were in principle kept within
the closed circle of the three branches of the legal profession: judges, prosecutors and
bengoshi.6 Significant decisions usually would not be made without the consensus of all three
branches.7 Radical reform could not be expected under such a mechanism.8
*
1
2
3
4
5
6
7
8
Senior Lecturer, Department of Accounting and Corporate Governance, Macquarie University, Australia. An
earlier version of this paper was presented at the Fourth International Legal Ethics Conference held at Stanford
University, Palo Alto in July 2010. The author would like to thank the participants at the aforesaid conference,
the two anonymous reviewers for their comments, and Professor Christine Parker for her patience and support.
For a description of the bengoshi profession in Japan see Setsuo Miyazawa, ‘Law Reform, Lawyers, and Access
to Justice’ in Gerald P McAlinn (ed), Japanese Business Law (Kluwer, 2007) 40, 43–49, 58–59, 77–78; Hiroshi Oda,
Japanese Law (Oxford University Press, 3rd edn 2009) 78–79.
Meryll Dean, The Japanese Legal System (Cavendish, 2nd edn 2002) 309.
See discussion in Kay-Wah Chan, ‘The Emergence of Large Law Firms in Japan: Impact on Legal Professional
Ethics’ (2008) 11 Legal Ethics 154, 159; Kahei Rokumoto, ‘Legal Education’ in Daniel H Foote (ed), Law in
Japan: A Turning Point (University of Washington Press, 2007) 211–14; Dean (n 2) 264–7.
Setsuo Miyazawa, ‘The Politics of Judicial Reform in Japan: The Rule of Law at Last?’ in William P Alford (ed),
Raising the Bar: The Emerging Legal Profession in East Asia (Harvard Law School, 2007) 108–14, 127; Daniel H
Foote, ‘Forces Driving and Shaping Legal Training Reform in Japan’ (2006) 7(3) Australian Journal of Asian
Law 215, 220.
Foote, ibid.
See Miyazawa (n 4) 114; Daniel H Foote, ‘Introduction and Overview: Japanese Law at Turning Point’ in Foote
(n 3) xxi.
Foote (n 6). Therefore the bengoshi profession could exercise ‘control over the market for their services’ by
controlling the ‘production of producers’ and ‘production by producers’. See Richard Abel, ‘The Decline of
Professionalism?’ (1986) 49(1) Modern Law Review 1; ‘Taking Professionalism Seriously’ [1989] Annual Survey
of American Law 41; and ‘The Politics of Professionalism: The Transformation of English Lawyers at the End
of the Twentieth Century’ (1999) 2 Legal Ethics 131.
Miyazawa (n 1) 49; Foote (n 6).
74
Kay-Wah Chan
In the late 1990s, the business sector and the then ruling Liberal Democratic Party
pushed for justice system reform.9 Media and liberal reformers joined the debate.10 In 1999,
the Justice System Reform Council (the Council) was established to deliberate on the
building of a justice system to support the country in the twenty-first century.11 Only three
of its 13 members were representatives of the three branches of the legal profession. 12 Its
agenda for discussion included expansion of access to bengoshi,13 meaning in practice an
increase in the number of bengoshi. The bengoshi themselves were divided on whether to
support the reform.14 The leaders of the Japan Federation of Bar Associations (JFBA), the
national bar association, of which every bengoshi must be a member, at the time considered
the reform an opportunity to realise the profession’s ‘long-standing hopes’, including reform
of the judiciary.15 Their view ultimately prevailed among the membership16 and the JFBA
gave its support to the reform.17
The Council issued its Final Report18 in June 2001. It considered that legal professionals
should have ‘highly developed professional legal knowledge’. It also stated that legal
professionals should acquire ‘strong legal ethics based on wide cultural knowledge and rich
humanity’, and that they should ‘[form] a broad class and [play] an active role in various
fields of society’.19 The Council further recommended a substantial increase in the number
of legal professionals. Since then, reforms have been implemented. Between 1999 and 2008
the number of bengoshi in Japan increased from fewer than 17,000 to over 25,000.20
Concerns have now been raised regarding the impact that the significant increase in the
profession’s number is having on its quality and ethics.21 Recent years have indeed seen a
substantial increase in the number of disciplinary actions against bengoshi (see below). On
18 July 2008 the JFBA announced its proposals for a slowing-down of the pace of increase
of new entrants.22 Indeed, many of the 52 local bar associations23 have demanded that the
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Miyazawa (n 4) 117–20, 123.
Ibid, 123.
For the background to the establishment of the Justice System Reform Council see Miyazawa (n 4) 115–23.
Ibid, 124.
Justice System Reform Council, ‘The Points at Issue in the Justice Reform’, 21 December 1999, www.kantei.go.jp/
foreign/policy/sihou/singikai/991221_e.html (accessed 27 May 2011).
Setsuo Miyazawa, Kay-Wah Chan and Ilhyung Lee, ‘The Reform of Legal Education in East Asia’ (2008) 4
Annual Review of Law and Social Science 333, 343.
Ibid.
Ibid. For discussion regarding the debate in the extraordinary meeting of the Japan Federation of Bar
Associations (JFBA) on this matter, see Miyazawa (n 4) 128.
Miyazawa, Chan and Lee (n 14) 343.
Justice System Reform Council, Recommendations of the Justice System Reform Council: For a Justice System to
Support Japan in the 21st Century, 12 June 2001.
Ibid, Chapter I Part 3, 2(2).
JFBA, Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 44.
‘Bengoshi kai kara hantai zokuzoku shihôshiken gôkaku nen 3000 nin keikaku (Successive opposition from
attorney associations on the plan to have 3000 people passing the annual bar examination)’ Asahi Shimbun
(morning edition), Tokyo, 20 October 2007, 1.
‘Hôsô zôin no gensoku teigen nen 3000 nin keikaku shitsuteika o ke’nen nichibenren (Japan Federation of Bar
Associations worried about the lowering of quality under the plan of 3000 entrants per year and proposed a
slow-down of the increase in legal professionals)’ Tokyo Shimbun, Tokyo, 19 July 2008, 1.
cont’d
Justice System Reform and Legal Ethics in Japan
75
policy of increasing bengoshi numbers be re-considered. They include the Chûgoku Federation of Bar Associations24 (which consists of the five local bar associations in Hiroshima,
Okayama, Tottori, Shimane and Yamaguchi prefectures),25 the Chubu Federation of Bar
Associations (consisting of the six local bar associations in Aichi, Gifu, Mie, Fukui, Toyama
and Ishikawa prefectures),26 Osaka Bar Association,27 Saitama Bar Association,28 Gunma
Bar Association,29 and Tochigi Prefecture Bar Association.30 However, some individual
bengoshi are in support of the increase.31
Those who demand a re-consideration of the increase in bengoshi numbers rely on
grounds such as concern regarding the quality of new entrants,32 the latter’s difficulty in
23
24
25
26
27
28
29
30
31
32
There is one local bar association in each of the 47 prefectures, except Tokyo and Hokkaido which have three
and four local bar associations respectively.
There is no official English translation. The original title (in Japanese) is Chûgoku Chihô Bengoshi Rengôkai.
It adopted the resolution in October 2007: see ‘Shihôshiken gôkakushazô ni chihô hanpatsu bengoshikai shitsuteika
maneku ke’nen (Regional repulsion against the increase in the number of candidates permitted to pass the
National Legal Examination: Bar associations worried that it will lead to a drop in quality)’ Sankei Shimbun,
Tokyo, 22 October 2007, 30.
It adopted the resolution in October 2007 and October 2009: see the article in Sankei Shimbun (ibid) and Chubu
Federation of Bar Associations, ‘Tekiseina bengoshi jinkô seisaku o motomeru ketsugi (Resolution requesting for
a policy on the appropriate bengoshi population)’, www.chubenren.jp/news/h21_04s_tekisei.html (in Japanese,
accessed 27 May 2011).
‘Hôsô zôin no minaoshi osaka bengoshikai ga ketsugi (Osaka Bar Association adopted resolution for a reconsideration on the increase of legal professions)’, www.nikkei.co.jp/news/past/honbun.cfm?i=AT1G0602S
06082008&g=K1&d=20080806 (in Japanese, accessed 27 May 2011).
It adopted a resolution in December 2007 and another resolution in May 2009: Saitama Bar Association,
‘Tekiseina bengoshi jinkô ni kansuru ketsugi (Resolution on the appropriate bengoshi population)’, www.saiben.or.
jp/chairman/2007/071215_01.html (in Japanese, accessed 15 December 2008); ‘Tekiseina bengoshi jinkô zôka
ni kansuru ketsugi (Resolution on the appropriate increase in bengoshi population)’, www.saiben.or.jp/chairman/
2009/090523_01.html (in Japanese, accessed 1 October 2010).
‘Shihôshiken gôkakusû minaoshi an o ketsugi gunma bengoshikai (Gunma Bar Association adopted resolution on
reconsideration of the number of candidates permitted to pass the National Legal Examination)’ Asahi Shimbun,
Gunma, 26 January 2009, 29.
It adopted a resolution on 30 May 2009: Tochigi Prefecture Bar Association, ‘Tekiseina bengoshi jinkô ni kansuru
ketsugi (Resolution on the appropriate bengoshi population)’, www.tochiben.com/topics/news32.html (in
Japanese, accessed 1 October 2010).
See eg Kazuki Okada, ‘Watashi no shiten: Bengoshi zôin kôseina shakai kizuku tameni fukaketsu (My viewpoint:
increase in attorneys is necessary for building a just society)’ Asahi Shimbun, Tokyo, 5 November 2008, 17; ‘Dai
zôin keizokuka, minaoshika, mabbutatsu ni wareru nichibenren (Japan Federation of Bar Associations was really
divided in two: continuing the large increase or having a change)’ Shûkan Tôyô Keizai (Weekly Toyo Keizai),
Tokyo, 22 May 2010, 56–57; ‘Bengoshi: zôin 3000 nin mondai de hirogaru sedaikan to chi’iki no shûnyû kakusa
(Bengoshi: expanding generational and regional income disparity due to the problem of increase to 3000
entrants)’ (2008) 96(35) Shûkan Daiyamondo 38–39.
See JFBA, ‘Hôsô jinkô mondai ni kansuru kinkyû teigen (Urgent suggestions regarding the issue of the legal
profession population)’, www.nichibenren.or.jp/ja/opinion/report/data/080718.pdf (in Japanese, accessed 13
September 2010); Saitama Bar Association, ‘Tekiseina bengoshi jinkô zôka ni kansuru ketsugi (Resolution on the
appropriate increase in bengoshi population)’, www.saiben.or.jp/chairman/2009/090523_01.html (in Japanese,
accessed 1 October 2010); Chubu Federation of Bar Associations, ‘Tekiseina bengoshi jinkô seisaku o motomeru
ketsugi teian riyû (Reasons for the resolution and proposal requesting a policy on the appropriate bengoshi
population)’ www.chubenren.jp/news/h21_04riyuu.html (in Japanese, accessed 1 October 2010); Gunma Bar
Association, ‘Hôsô jinkôto hôsô yôsei ni kansuru ketsugi (Resolution regarding the population and nurturing of
legal professions)’, www.gunben.or.jp/3-2ikensyo3.htm (in Japanese, accessed 13 September 2010).
76
Kay-Wah Chan
securing jobs,33 competition,34 and a drop in professional ethics.35 Does the swelling number
of bengoshi really adversely affect legal ethics standards in Japan? Should the pace of reform
be slowed down, from the perspective of maintaining legal ethics standards? This paper will
explore these questions by means of an empirical analysis. Opposition to the increase in
bengoshi numbers on the ground of ethical concern is based on two premises: (1) there has
been an increase in cases of ethical concern; and (2) such an increase is caused by the
proliferation of bengoshi. This paper therefore empirically analyses the evidence for these
two premises.
Relevant data are available from the JFBA. In Japan, the bengoshi profession is a selfregulatory body and every practising bengoshi must be a member of his or her local bar
association and also of the JFBA.36 The JFBA has published an annual white paper (called
Bengoshi Hakusho [Lawyers White Paper]) since 2002. This publication includes statistical
data on complaints and requests for disciplinary action against bengoshi. The JFBA also
publicises statistical data on disciplinary actions concerning bengoshi on its website. In
addition, in its monthly magazine/journal Jiyû to Seigi (Liberty and Justice), the JFBA
publishes notices of disciplinary cases, providing information on the disciplined bengoshi’s
name and registration number, the relevant law firm’s name and address, the penalty that
the disciplined bengoshi received, and brief facts of the case. These data do not include
incidents where no complaints or disciplinary requests have been made, and therefore may
not reflect the full picture of unethical conduct in the profession. However, it is almost
impossible to ascertain the number of cases of ethical concern in relation to which no
complaints or disciplinary requests have been lodged. There is no alternative, more reliable
data available for empirical analysis than that of the JFBA. Furthermore, this paper will not
analyse malpractice lawsuits against bengoshi because they are relatively uncommon in
Japan37 since clients are generally reluctant to sue bengoshi.38 Bengoshi are also reluctant to
handle lawsuits against other bengoshi.39
Section 1 of the paper provides a summary of the bengoshi disciplinary system in Japan.
Section 2 analyses the situations in which complaints are lodged against bengoshi. It is found
33
34
35
36
37
38
39
See Saitama Bar Association, ‘Tekiseina bengoshi jinkô ni kansuru ketsugi (Resolution on the appropriate bengoshi
population)’, www.saiben.or.jp/chairman/2007/071215_01.html (in Japanese, accessed 15 December 2008);
Tochigi Prefecture Bar Association, ‘Tekiseina bengoshi jinkô ni kansuru ketsugi (Resolution on the appropriate
bengoshi population)’, www.tochiben.com/topics/news32.html (in Japanese, accessed 1 October 2010).
See Chubu Federation of Bar Associations (n 32) and ‘Tekiseina bengoshi jinkôni kansuru ketsugi teian riyû
(Reasons for the resolution and proposal concerning the proper population of attorneys)’, www.chubenren.jp/
news/h19_04_01riyuu.html (in Japanese, accessed 13 September 2010); Saitama Bar Association (n 32); Gunma
Bar Association (n 32); Tochigi Prefecture Bar Association (n 33).
See Chubu Federation of Bar Associations, ibid; Gunma Bar Association (n 32).
Attorney Act, Arts 36 and 47; Articles of Association of the JFBA, Art 27(1).
Toshio Nishimura (trans Vicki L Beyer), ‘The Code of Ethics applicable to Bengoshi’, speech presented at the
Temple University Japan CLE seminar ‘Professional Ethics in International Business’, 12 January 1998,
www.tuj.ac.jp/newsite/main/law/lawresources/TUJonline/Japan%27sLegalProfession/benethics.html (accessed
11 June 2011).
Ibid.
Ibid; S Ota, ‘Bengoshi wa riyôshiyasuika? (Is it easy to engage bengoshi?)’ in Y Wada, S Ota and M Abe (eds), Kôshô
to Funsôshori (Negotiation and Dispute Resolution) (Nippon Hyoronsha, 2002) 311.
Justice System Reform and Legal Ethics in Japan
77
that the data on complaints prove neither an increase in cases of ethical concern nor a
correlation between the increase in bengoshi numbers and an increase in ethical concerns. In
section 3, statistical data on disciplinary requests and cases is analysed, and section 4 focuses
on the 71 disciplinary cases publicised by the JFBA in Jiyû to Seigi between January and
December 2009.40 These analyses also find no conclusive evidence of any correlation between
an increase in the number of bengoshi and an increase in ethical concerns. In section 5 we
investigate whether there is an over-supply of bengoshi, and this is followed by a discussion
of the negative impact that any scaling-back of the reform (in other words, slowing the pace
of increase of bengoshi numbers) will have on access to justice. If there is still a shortage of
bengoshi, there should not be intensified competition that causes a decline in legal ethics
standards.41 The paper concludes with a discussion of the bengoshi profession’s (ethical)
responsibility in relation to access to justice.
1. BENGOSHI DISCIPLINARY SYSTEM
The Attorney Act (the Act) empowers the local bar associations and the JFBA to discipline
their respective members.42 There are four situations where disciplinary sanction can be
imposed: violation of the Act; violation of the Articles of Association of the JFBA or of the
relevant local bar association; where the bengoshi has committed an act that harms the order
or reputation of his/her local bar association; and where the bengoshi engages in
misbehaviour (whether or not in the conduct of professional activities) that impairs his/her
own integrity.43 The Articles of Association of the JFBA (JFBA Articles) require all bengoshi
to abide by the rules and regulations of the JFBA.44 In 2004 the JFBA adopted its first ‘ethics
code’ with binding provisions: the Basic Rules on the Duties of Practising Attorneys (the
Rules).45 Hazard and Dondi have identified six ‘professional virtues’ (ethical norms) that
are applicable to lawyers across a range of countries and jurisdictions: competence,
independence, loyalty to client, confidentiality, responsibility to courts and colleagues, and
honourable conduct in professional and personal matters.46 All of these are covered in the
40
41
42
43
44
45
46
Seventy-two cases were reported in the January–December 2009 issues of Jiyû to Seigi. The sanction in one such
case was subsequently revoked by the JFBA and the bengoshi concerned was not disciplined (the revocation of
the sanction was announced in the July 2010 issue of Jiyû to Seigi, 140–1).
There are claims that the substantial increase in bengoshi numbers has led to competition, and intensified
competition leads to a decline in legal ethics standards (see ‘Sakunendo no bengoshi chôkai 69 ken kakosaita
(Disciplinary cases reached record high last year: 69 cases)’ Sankei Shimbun, Tokyo, 8 March 2007, 29;
‘Hibenteikei saimusha shôkai sanjûsûnin ni kinyûgyôsha assen ôsaka no bengoshi taiho (Affiliation with nonbengoshi: Money-lender as intermediary introduced 30 odd debtors and an Osaka bengoshi was arrested)’ Sankei
Shimbun, Osaka, 12 October 2006, 31; the article in Asahi Shimbun (n 21); and Chubu Federation of Bar
Associations (n 34)).
Attorney Act, Art 56 para 2 and Art 60 para 1.
Ibid, Art 56 para 1.
Articles of Association of the JFBA, Art 29.
Effective on 1 April 2005. The Rules include both ‘binding’ and ‘aspirational’ provisions. For discussions of the
Rules and the situation before they were adopted, see Chan (n 3) 164 fn 65.
Geoffrey C Hazard, Jr and Angelo Dondi, Legal Ethics: A Comparative Study (Stanford University Press, 2004)
109.
78
Kay-Wah Chan
Japanese ethical regulatory regime.47 Although some provisions in the Rules are aspirational
only, a bengoshi in breach of such aspirational provisions may still be subject to disciplinary
sanction. This is because of the broad wording of the provision which covers ‘misbehaviour
(whether or not in the conduct of professional activities) that impairs the bengoshi’s own
integrity’.48
Any person, whether or not related to the alleged misconduct, can lodge a disciplinary
request against a bengoshi.49 The request is to be lodged with the local bar association to
which the bengoshi concerned belongs.50 This will initiate the disciplinary investigation
process. The matter will be investigated by the Disciplinary Enforcement Committee (Kôki
I’inkai) (DEC) of the local bar association.51 The investigation process can also be initiated
by the local bar association itself if it considers that there are grounds to discipline a member
bengoshi.52 This DEC’s role is to investigate whether the matter should be referred to the
Disciplinary Actions Committee (DAC) (Chôkai I’inkai) of the local bar association for
examination. The DAC’s function is to examine the matter and make a resolution on whether
or not it is appropriate to discipline the bengoshi concerned and, if appropriate, the sanction
to be imposed.53 The bar association has to make a ruling in accordance with the DAC’s
resolution.54
The JFBA also has a similar process which it can initiate itself. If the JFBA finds that
there are grounds to discipline a bengoshi, it can call upon its Disciplinary Enforcement
Committee (JFBA-DEC) to investigate whether the matter should be referred to the JFBA’s
Disciplinary Actions Committee (JFBA-DAC) for examination.55 The JFBA-DAC will
examine the matter and decide whether it is appropriate to discipline the bengoshi concerned
and, if appropriate, the sanction to be imposed.56 The JFBA shall make a ruling accordingly.57
A number of checks and monitoring mechanisms are built into the disciplinary procedure,
including the establishment of the Board of Discipline Review (BDR) (Kôki Shinsa Kai).
This will be discussed below.
2. COMPLAINTS
Statistical data reveal a substantial increase in the number of complaints lodged with bar
associations against bengoshi, from 2,203 in 1998 to 9,427 in 2008.58 However, over the same
47
48
49
50
51
52
53
54
55
56
57
58
See Chan (n 3) 163–6, 171–2, 175, 176.
See discussions in Chan (n 3) 165–6.
Attorney Act, Art 58 para 1.
Ibid.
Ibid, Art 58 para 2.
Ibid.
Ibid, Art 58 paras 5, 6.
Ibid.
Ibid, Art 60 paras 2, 3, 4.
Ibid, Art 60 paras 5, 6.
Ibid.
JFBA (n 20) 182.
Justice System Reform and Legal Ethics in Japan
79
period, the number of bengoshi has also substantially increased and therefore a corresponding increase in complaints should be expected. Yet even when the rate of complaints is
calculated in proportion to the number of bengoshi,59 there is still a dramatic increase: 135.1
complaints per 1,000 bengoshi in 1998 compared with 376.5 complaints per 1,000 bengoshi
in 2008.
This paper will focus on statistical data from 2004 for detailed analysis because they are
relatively reliable. Prior to January 2004, there was no standardised and uniform statistical
methodology adopted for the different local bar associations in relation to such complaints.60
Moreover, the data from 1998 to 2002 do not cover all 52 local bar associations.61
Table 1 shows the yearly bengoshi population as well as the number of complaints, the
number of bengoshi who were the subject of complaints, and the percentage of such bengoshi
out of the total bengoshi population from 2004 62 to 2008. It is necessary to look closely at the
data on the actual number of bengoshi who were the subject of complaints because, as shown
in Table 1, multiple complaints might have been lodged against a single bengoshi. Table 1
also shows that despite a continuous increase in the number of bengoshi over this period of
time, the proportion of bengoshi who were the subject of complaints fluctuated within a
relatively narrow range and the most recent two years have the lowest percentages. There is
no conclusive evidence of an actual increase in complaints.
Table 1: Complaints against bengoshi (2004–8)
2004
2005
2006
2007
2008
Complaints
8,112
8,212
8,861
8,668
9,427
Bengoshi subject to complaints
6,364
6,295
7,035
6,645
7,095
Total bengoshi population
21,174
22,059
23,096
25,118
26,959
Percentage of bengoshi subject to
complaints
30.06
28.54
30.46
26.46
26.32
Source: Data from JFBA, Bengoshi Hakusho 2005 Nenban (Lawyers White Paper 2005 Edition) 171;
Bengoshi Hakusho 2006 Nenban (Lawyers White Paper 2006 Edition) 175; Bengoshi Hakusho 2007
Nenban (Lawyers White Paper 2007 Edition) 226; Bengoshi Hakusho 2008 Nenban (Lawyers White Paper
2008 Edition) 248; Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 183.
Using the number of bengoshi as set out in JFBA (n 20) 44.
Atsushi Fujii, ‘Shimin madoguchi seido to so no unyô no jôkyô (The grievance counter system and the situation
of its usage)’ (2008) 59(1) Jiyû to Seigi 21, 25.
61 Ibid, 24. For example, the 1998 data do not include six local bar associations’ data and the 2002 data do not
include three local bar associations’ data.
62 Statistical data for earlier years available to the author do not give a breakdown of the actual number of bengoshi
who were the subject of complaints.
59
60
80
Kay-Wah Chan
In addition, a comparative study of the number of bengoshi subject to complaints in each
district court jurisdictional area shows an absence of a correlation between trends in the
number of bengoshi subject to complaints and the increase in the bengoshi population.
According to the logic behind the argument that the increase in bengoshi numbers has led
to an increase in legal ethics concerns, an increase in the bengoshi population should cause
an increase (or at least not a reduction) in the number of bengoshi subject to complaints, and
a greater increase in the bengoshi population should lead to a greater increase in the number
of bengoshi subject to complaints. Figure 1 compares the extent of changes in bengoshi subject
to complaints and the rate of increase of bengoshi in different district court jurisdictional
areas. Although all district court jurisdictional areas saw an increase in bengoshi numbers
between 2004 and 2008, 20 of them saw a decrease in the number of bengoshi subject to
complaints. Of the 22 district court areas with a higher than average rate of increase in
bengoshi numbers, nine areas saw a reduction in the number of bengoshi subject to
complaints. On the other hand, among the 28 district court regions with a lower than average
rate of increase in bengoshi numbers, 17 regions saw an increase in the number of bengoshi
subject to complaints. Four of these 17 regions saw a higher than average rate of increase in
the number of bengoshi subject to complaints. In other words, there is no consistent
correlation between the rate of increase of the bengoshi population and the rate of increase
or decrease in the number of bengoshi subject to complaints.
Data on complaints therefore prove neither (a) an increase in cases of ethical concern
(after taking into account the number of bengoshi who were the subjects of complaints) nor
(b) a correlation between the increase in bengoshi numbers and legal ethics concerns.
Justice System Reform and Legal Ethics in Japan
81
Figure 1: Change in number of bengoshi and bengoshi subject to complaints—by district
court jurisdictional area (2004–8)
Change in Bengoshi (%)
Change in Bengoshi Complained (%)
Tottori
Shimane
Aomori
Shiga
Fukui
Oita
Saga
Kushiro
Yamaguchi
Nagasaki
Miyazaki
Ibaraki
Asahikawa
Wakayama
Sapporo
Fukushima
Kagawa
Okayama
Tokushima
Chiba
Mie
Saitama
Average
Sendai
Kumamoto
Nara
Gunma
Shizuoka
Yokohama
Yamanashi
Kanazawa
Yamagata
Aichi
Hiroshima
Ehime
Tokyo
Niigata
Gifu
Hyogo
Kochi
Nagano
Fukuoka
Iwate
Kagoshima
Tochigi
Kyoto
Akita
Toyama
Osaka
Okinawa
Hakodate
⫺200
0
200
400
600
800
%
Source: Graph constructed using data from JFBA, Bengoshi Hakusho 2005 Nenban (Lawyers White
Paper 2005 Edition) 171; Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 183.
82
Kay-Wah Chan
3. DISCIPLINARY ACTIONS
Disciplinary Requests
Like complaints, there is an increase in the absolute number of disciplinary requests, as
shown in Figure 2 (the lightly shaded columns). However, as argued above, the number of
bengoshi must be taken into account. It can be seen from the dotted line in Figure 2 that
there is a trend of increase in the ratio of disciplinary requests to bengoshi population. The
number of bengoshi increased from 13,288 to 26,930 between 1988 and 2009.63 There seems
to be a correlation between the increase in bengoshi numbers and the increase in the ratio of
disciplinary requests to bengoshi population. However, a closer look at the data casts doubt
on this proposition. First, between 1988 and 1995, while there was only a 13.7% increase in
the number of bengoshi,64 there was a 145% increase in the number of disciplinary requests.65
The number of requests increased at a faster pace than the number of bengoshi. This is also
clearly shown in a comparison of the respective requests-to-bengoshi ratio between 1988
(17.69 requests per 1,000 bengoshi) and 1995 (38.13 requests per 1,000 bengoshi). The
number of disciplinary requests greatly increased before the substantial increase in the
bengoshi population.
So, what was the situation when the pace of increase in bengoshi numbers gathered
speed? As shown in Figure 3 overleaf, the pace began to pick up around 1996/7. The growth
further accelerated after 2000. When we focus on the period between 1995 and 2009, we still
see a general trend of increase in the number of disciplinary requests and their ratio to the
bengoshi population (see Figure 2). However, as compared with the high rate of increase
(115.5%) between 1988 and 1995, the requests-to-bengoshi ratio increased only 16.9%
between 1995 and 2002 and 16.8% between 2002 and 2009. On the other hand, these more
recent periods saw a higher increase in bengoshi numbers than between 1988 and 1995.66
This casts doubt on the claim that there is a correlation between the increase in the bengoshi
population and the increase in ethical concerns.
Disciplinary Cases
An increase in the number of complaints or disciplinary requests that were lodged does not
necessarily mean an increase in misconduct on the part of bengoshi. The public may become
more aware of their rights and the venues for airing grievances. For example, regarding the
increase in the number of complaints lodged against its members, the Fukuoka Bar
Association concluded that, with their increasing numbers, bengoshi had become closer or
JFBA (n 20) 44.
There were 13,288 and 15,108 bengoshi in 1988 and 1995 respectively (ibid, 44).
65 There were 235 and 576 disciplinary requests in 1988 and 1995 respectively (JFBA, Bengoshi Hakusho 2005
Nenban (Lawyers White Paper 2005 Edition) 56).
66 There was a 13.7% increase in bengoshi numbers between 1988 and 1995, a 24.7% increase between 1995 and
2002, and a 43% increase between 2002 and 2009 (figures obtained using data from JFBA (n 20) 44).
63
64
Justice System Reform and Legal Ethics in Japan
83
Figure 2: Trend of disciplinary requests, disciplinary cases, and ratios to bengoshi population
(1988–2009)
75
1800
No. of Requests
Discipline Cases
Requests per 1,000
bengoshi
Discipline Cases
per 10,000 bengoshi
1200
50
600
25
0
0
1988
1991
1994
1997
2000
2003
2006
2009
Source: Data from JFBA, Bengoshi Hakusho 2006 Nenban (Lawyers White Paper 2006 Edition) 181;
Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 44, 206; Chôkaiseikyû Jian Shûkei
Hôkoku 2009 Nen (2009 Report on Disciplinary Request Cases) (2010) 61(4) Jiyû to Seigi 178.
84
Kay-Wah Chan
Figure 3: Growth in bengoshi numbers (1988–2009)
Annual
Growth (%)
No. of
Bengoshi
30000
8.31
No. of Bengoshi
9
Annual growth in Bengoshi (%)
7.54 8
26930
25000
25041
6.52
7
6
20000
4.99
4.75
5
4
3.56
15000
15108
1.90
3
2.65 2.61
13288
2.03
1.86
2.02
2
10000
1
0
5000
1988
1991
1994
1997
2000
2003
2006
2009
Source: Data from JFBA, Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 44.
NB: The sudden rise in bengoshi numbers in 2001 was a result of the shortening of the training period
at the Legal Training and Research Institute, which led to two cohorts of newly admitted bengoshi in
the same year, 2000, which affects the data on yearly bengoshi population for 2001 in the above graph
(data for the graph are based on bengoshi population on 31 March of each calendar year).67
67
From April 1999 (53rd cohort), the training period was reduced from two years to 18 months. The 52nd cohort
graduated and were admitted in April 2000, while the 53rd cohort graduated and were admitted in November
2000. This period was further reduced to 16 months from the 60th cohort and, for those who pass the New
National Legal Examination (which is held yearly from 2006), the training period is one year.
Justice System Reform and Legal Ethics in Japan
85
more familiar to the public, who as a result had become more eager to raise complaints.68 A
substantial increase in complaints was also found in relation to the quasi-legal profession of
judicial scriveners (shihôshoshi). According to their national association,69 the number of
complaints handled by the local judicial scrivener associations increased from 58 in 1999 to
689 in 2008.70 This suggests that Japanese society may have become generally more litigious
or rights-conscious.71
Some complaints and disciplinary requests may have been frivolous or groundless. The
increase in the number of disciplinary requests and their ratio to bengoshi population may
be due to a change in the public’s attitude. It can also be related to the expansion of a practice
area that gives rise to increased complaints. In recent years, there has been a substantial
increase in complaints regarding cases that involve debtors seeking recovery of excessive
interest from lenders (called ‘grey-zone’ interest in Japan).72 In the past, the Interest Rate
Restriction Act73 capped interest rates at 15–20% (depending on the loan amount). However
the Act Regulating the Receipt of Contributions, Receipt of Deposits and Interest Rates74
permitted rates up to 29.2%. This created a grey-zone (above the cap set by the Interest Rate
Restriction Act but not more than 29.2%) and many consumer loan companies levied greyzone rates.75 In 2006, the Supreme Court ruled against the legality of such grey-zone rates
in principle.76 Since then, many borrowers sought recovery of the grey-zone interest that
68
69
70
71
72
73
74
75
76
‘Bengoshi fueta kujô mo fueta madoguchi e no iken 2 warizô Fukuoka ken bengoshikai shimin ni mijikana sonzai
ni (Bengoshi increased, complaints also increased, comments lodged increased by 20% and, according to the
Fukuoka Bar Association, bengoshi become closer to the people)’ Nishinippon Shimbun, Fukuoka, 31 March
2009.
Nihon Shihôshoshikai Rengôkai, which is currently translated by the body itself as Japan Federation of ShihoShoshi Lawyers’ Associations. The profession, however, is not a fully-fledged legal profession.
Nihon Shihôshoshikai Rengôkai, Nihon Shihôshoshi Hakusho 2009 Nenban (Judicial Scriveners White Paper 2009
Edition) (2010) 158: the figures are based on reports from the local judicial scrivener associations.
There is considerable debate amongst scholars regarding the Japanese people’s litigiousness and legal
consciousness, and whether the reasons for the relative lack of litigation in Japan are cultural, institutional or
economic. See Takeyoshi Kawashima, ‘Dispute Resolution in Contemporary Japan’ in AT von Mehren (ed),
Law in Japan: The Legal Order in a Changing Society (Harvard University Press, 1963) 41; John Owen Haley, ‘The
Myth of the Reluctant Litigant’ (1978) 4(2) Journal of Japanese Studies 359; J Mark Ramseyer and Minoru
Nakazato, ‘The Rational Litigant: Settlement Amounts and Verdict Rates in Japan’ (1989) 18 Journal of Legal
Studies 263; Frank Upham, Law and Social Change in Postwar Japan (Harvard University Press, 1987). See also
Eric A Feldman, ‘Law, Culture, and Conflict: Dispute Resolution in Postwar Japan’ in Foote (n 3) 50–79; KL Port,
Comparative Law: Law and Legal Process in Japan (Carolina Academic Press, 1996) 10–13.
Yuichi Inoue, ‘Kabarai kin henkan toraburu hinpatsu bengoshi shihôshoshi o shinraishita noni (Despite the trust
in bengoshi and judicial scriveners, troubles frequently occur in relation to cases of recovery of overpaid
interests)’ Asahi Shimbun (evening edition), Tokyo, 16 August 2010, 9.
Act No 100 of 1954.
Act No 195 of 1954.
See eg ‘Editorial: Help for Loan Victims’ Japan Times, Tokyo, 16 February 2006, http://search.japantimes.co.jp/
cgi-bin/ed20060216a1.html (accessed 20 September 2010); Manabu Sasaki, ‘Hai’irokinri jisshitsu hitei shôhisha
kinyû no seigenhô kosu risoku saikôsai hanketsu (The Supreme Court essentially ruled against the interest
exceeding rates permitted under the Interest Rate Restrictions Act, the so-called grey-zone interest rates)’ Asahi
Shimbun (morning edition), Tokyo, 14 January 2006, 1.
Ibid.
86
Kay-Wah Chan
they had paid.77 This gave rise to a large market for some bengoshi.78 However, at the same
time, grievances against bengoshi also increased.79 Common grounds for grievance include
high legal fees,80 and the lack of in-person meetings with bengoshi.81
In addition, the exceptional rise in the number of disciplinary requests and their ratio
to bengoshi population for the year 2007 (see Figures 2 and 4) indicates that the public may
have become much more concerned about bengoshi’s conduct nowadays, at least in relation
to cases that receive wide coverage in the media. The exceptional rise in 2007 relates to a
particular criminal trial, in which the accused youth was charged with the murder of a young
mother and her daughter.82 There was wide media coverage and the case attracted much
public attention.83 One TV celebrity bengoshi called on viewers to campaign for disciplinary
action against the defence bengoshi.84 A large number of disciplinary requests (a total of
77
78
79
80
81
82
83
84
See eg Inoue (n 72) 9; ‘Kabaraikin henkan seikyû no en (The feast of overpaid interest requests)’ Shûkan
Daiyamondo, Tokyo, 29 August 2009, 33.
See eg ‘Lawyers Overcharging Debtors/Unscrupulous Attorneys, Judicial Scriveners Prey on Heavily Indebted’
Daily Yomiuri, Tokyo, 4 April 2010, 2; and the article in Shûkan Daiyamondo (ibid), 33–34, 36.
See eg Inoue (n 72); ‘Akushitsu bengoshi no jirei nichibenren ga chôsa e tajû saimu de kujô fue (Increase in
complaints regarding multiple debt cases; the Japan Federation of Bar Associations proceeds to conduct survey
on cases of bad bengoshi)’ Asahi Shimbun, Tokyo, 5 November 2009, 31.
See eg Inoue (n 72); and the article in Daily Yomiuri (n 78).
See eg the article in Daily Yomiuri (n 78); and the article in Asahi Shimbun (n 79).
At the time of the crime the accused was 18 years and 1 month old. Under Japanese law he was a minor but, as
a person of 18 years of age, he could be subject to the death penalty. He was accused of strangling a young
woman to death, raping her, and also killing her 11-month-old daughter in 1999. He was convicted and
sentenced to life by the Yamaguchi District Court in 2000. Upon appeal by the prosecutors who sought the
death penalty, the life sentence was upheld by the Hiroshima High Court in 2002. The Supreme Court in June
2006 quashed this high court ruling and sent the case back to the Hiroshima High Court for retrial. For details
of the case see eg ‘Prosecutors Lose Appeal to Execute Killer Youth’ Japan Times, Tokyo, 15 March 2002,
http://search.japantimes.co.jp/cgi-bin/nn20020315b4.html (accessed 27 May 2011); Mayumi Negishi and Kaho
Shimizu, ‘Top Court Sends Case Back, Saying Consider Death Penalty Anew’ Japan Times, Tokyo, 21 June 2006,
http://search.japantimes.co.jp/cgi-bin/nn20060621a3.html (accessed 27 May 2011); ‘Killer Given Life as Minor
Gets Death’ Japan Times, Tokyo, 23 April 2008, http://search.japantimes.co.jp/cgi-bin/nn20080423a1.html
(accessed 27 May 2011).
A newspaper article (‘Bôchôkibôsha chôda no retsu shikei ka hi handan ni kanshin Hikari no boshi satsugai
sashimodoshishin kaishi (The retrial of the Hikari mother-and-child murder case began and there was interest
in the decision of death penalty or not: There was a long queue of people wanting to hear the case)’ Asahi
Shimbun (morning edition), Yamaguchi, 25 May 2007, 23) reported that a total of 967 people wanted to hear
the retrial of the case at the Hiroshima High Court, there was a large number of reporters, and there was even
a media helicopter circling above the court. The deceased woman’s husband had also ‘made numerous
appearances’ on television to call for the death penalty (‘Killer Given Life as Minor Gets Death’, ibid).
The accused admitted to murdering the woman and her child at both the district court and the high court
appeal trials. During the retrial of the case by the Hiroshima High Court after its earlier life sentence was quashed
by the Supreme Court, the accused denied his intention to kill the mother and child. As pointed out by David
T Johnson, Japanese defence bengoshi generally believe that ‘they should relate to prosecutors as cooperatively
and constructively as possible’ and only a small group of bengoshi practise ‘more vigorously adversarial defense
lawyering’ (see David T Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University
Press, 2002) 75, 78). In fact, one bengoshi who belongs to this small group (see Johnson, 78–79) led the defence
team in the retrial of this murder case. The TV celebrity bengoshi who criticised the defence bengoshi’s arguments
and called upon viewers to campaign for disciplinary action was subsequently sued by the defence bengoshi for
defamation. Various academics and others also filed a disciplinary request against the TV celebrity bengoshi
and, in September 2010, the Osaka Bar Association disciplined him with an order of suspension from practice
Justice System Reform and Legal Ethics in Japan
87
8,095 requests) were lodged.85 As discussed above, the Japanese disciplinary system allows
anybody, whether related to the alleged misconduct or not, to lodge a disciplinary request.
However, frivolous or groundless requests may also increase. Between 1995 and 2008 there
was a 177.1% increase in the number of requests, but only a 53.9% increase in the number
of disciplinary cases.86 This does not seem to be due to any backlog of cases: JFBA statistical
data confirm the absence of any backlog (the number of yearly newly-received cases between
2004 and 2009 was 1,268, 1,192, 1,367, 9,585, 1,596 and 1,402 respectively, and the number
of yearly terminated cases between 2004 and 2009 were 1,092, 973, 1,325, 2,029, 9,025 and
1,236 respectively).87
It might be suggested that the comparatively low increase in the number of disciplinary
cases (as contrasted with the sharp increase in requests lodged) is because the disciplinary
authorities do not pursue some matters or use a more lenient standard because they lack
sufficient resources to handle the increased number of requests. In response to the increase
in complaints and disciplinary requests, Osaka Bar Association substantially expanded its
human resources in 2003 and 2004.88 In addition, there are a number of checks and
monitoring mechanisms built into the disciplinary procedure. The grievant can file an
objection to the JFBA in a number of situations, namely if he/she is not satisfied with the nofor two months. For more details of the murder case and the change in arguments by the accused, see eg ‘Killer
Given Life as Minor Gets Death’ (n 82); Takaya Fukuda, Yasushi Saito and Chika Akiyama, ‘Itten satsui hi’nin
motoshônen no shin’i wa bengoshi kôtai “amae” shuchô Yamaguchi boshi satsugai sashimodoshi’shin (In the retrial
of the Yamaguchi mother-and-child murder case, with a change of defence lawyers, the former youth changed
his mind, denied intent to kill and claimed the incident was out of “amae” [a tendency to readily depend on a
close and older person]: what his real intention was)’ Asahi Shimbun (morning edition), Tokyo, 17 October
2007, 29 (the name of the bengoshi who led the defence team can be found in this newspaper article); ‘Hikari
boshi satsugai no moto shonen ni shikei sashimodoshi kôsoshin hanketsu “hansei hodo tôi” Hiroshima kôsai
(Hiroshima High Court at the retrial appeal case decided that the accused was far from showing remorse and
handed down death penalty to the former youth of the Hikari City mother-and-child murder case)’ Asahi
Shimbun (evening edition), Tokyo, 22 April 2008, 1. For details of the bengoshi’s call for disciplinary action see
‘Bengoshidan ni chôkai seikyû 3900 ken: hikari boshi satsugai jiken no tv hatsugen hamon (3900 disciplinary
requests against the attorney team: the ripples of the statements made on TV regarding the Hikari City mother
and child murder case)’ Asahi Shimbun (evening edition), Osaka, 6 September 2007, 1; ‘Redress Owed by
Hashimoto Halved’ Japan Times, Tokyo, 3 July 2009, http://search.japantimes.co.jp/cgi-bin/nn20090703a8.html
(accessed 27 May 2011) (the latter also gives details of the lawsuit lodged against him by the defence bengoshi).
For details of the disciplinary sanction imposed on him see ‘Hashimoto Sanctioned over 2007 TV Comment’
Japan Times, Tokyo, 18 September 2010, http://search.japantimes.co.jp/cgi-bin/nn20100918a7.html (accessed
27 May 2011).
JFBA, Bengoshi Hakusho 2008 Nenban (Lawyers White Paper 2008 Edition) 268.
The figures on percentage increase are arrived at using data on the number of disciplinary requests (576 and
1,596) and disciplinary cases (39 and 60) from JFBA (n 20) 206.
87 JFBA, ‘Chôkaiseikyû Jian Shûkei Hôkoku 2009 Nen (2009 Report on Disciplinary Request Cases)’ (2010) 61(4)
Jiyû to Seigi 178.
88 Manpower on the complaints reception counter increased from 50 people upon its establishment in 1995 to 100
in 2000, to 150 in 2003: Hiroshi Takami, ‘Ôsaka ni Okeru Shimin Madoguchi no Unyô Jôkyô (The situation of
usage of the consultation counter in Osaka Bar Association)’ (2008) 59(1) Jiyû to Seigi 32, 32. Regarding
disciplinary requests, the membership of Osaka Bar Association’s DEC increased from 60 to 100 in 2004:
‘Bengoshi no “hikô” supîdo shori kôkii’inkai o ôhabazou e (Substantial increase in Disciplinary Enforcement
Committee members to speedily handle bengoshi “misconduct” cases)’ Yomiuri Shimbun, Tokyo, 25 February
2004, 12.
85
86
88
Kay-Wah Chan
discipline decision made by the local bar association, if there is a delay in the disciplinary
procedure at the local level, or if he/she considers the local bar association’s sanction unjustly
lenient.89 If the grievant is dissatisfied with the JFBA-DEC’s dismissal or rejection of his/her
objection against a local bar association’s no-discipline ruling, he/she can apply to the BDR
for a disciplinary review.90 This BDR is made up entirely of people outside the legal
profession.91 In addition, because ethical concern is one of the grounds upon which the
profession is now demanding a slow-down of the increase in bengoshi numbers, it is unlikely
that the profession will now become more lenient than before or will tend not to pursue
some matters in disciplinary actions.
The analysis therefore now focuses on the data on disciplinary cases. The ratio of
disciplinary cases to bengoshi population fluctuated within a comparatively narrow range
between 1995 and 2009 (Figure 4), despite a continual increase in the number of bengoshi.
In addition, according to the JFBA, in the 10 years to 2008, despite the increase in bengoshi
numbers, the proportion of disciplined bengoshi fluctuated, with no big changes, within the
range 0.2% to 0.35%.92 There is therefore no conclusive evidence of causation between the
increase in the bengoshi population and legal ethics concerns.
Furthermore, when the disciplinary cases are examined closely regarding the penalty
imposed, it is found that there was a trend of increase in the lightest penalty: reprimand (see
Figure 5 overleaf). The Act provides for four types of penalty: reprimand, suspension (up to
a maximum of two years), order to withdraw, and disbarment.93 The lightest penalty is
reprimand and disbarment is the heaviest. A disbarred bengoshi is deprived of the right to
practise for three years.94 A bengoshi subject to a withdrawal order has to leave his/her local
bar association, but there is no restriction on his/her application to register with another
local bar association.95 However, in reality, other local bar associations will be unlikely to
accept such a bengoshi.96
As shown in Figure 5, the majority of disciplinary cases in 2008 and 2009 (70% and
52.6% respectively, as compared with 21.4% in 1988) involved the lightest penalty,
reprimand. The number of disciplinary cases resulting in a withdrawal order or disbarment
penalty was generally small, whether in the late 1980s, 1990s, or in recent years. In absolute
figures, the aggregate number ranged from one to eight. In terms of proportion of the total
number of disciplinary cases, they generally constituted a small percentage (ranging from
2.9% to 11.9%), except for six years: 1993–6, 1999 and 2000 (Figure 6). The ratio also
fluctuated. There is no correlation with the number of bengoshi. In the most recent years,
89
90
91
92
93
94
95
96
Attorney Act, Art 64 para 1.
Ibid, Art 64-3 para 1.
Ibid, Art 71-3 para 1.
JFBA (n 20) 207.
Attorney Act, Art 57 para 1.
Ibid, Art 7 para 3.
There are 52 local bar associations in Japan: four in Hokkaido, three in Tokyo and one in each of the other
prefectures.
A Ito, Bengoshi Gyôkai Daikenkyû (Study of the Bengoshi Profession) (Sangakusya, 2009) 31.
Justice System Reform and Legal Ethics in Japan
89
Figure 4: Trend of disciplinary requests, disciplinary cases and ratio of disciplinary cases to
bengoshi population (1995–2009)
414.59
100
50
Discipline Cases
Requests per 1,000 bengoshi
Discipline Cases per 10,000 bengoshi
75
35.04
31.33
31.08
28.22
25.81
50
25
23.96
24.23
17.47
43.85
25
62.08
62.70
60.14
48.46
57.77
63.74
56.27
52.06
44.59
42.97
30.76
38.13
31.38
0
39
27
38
43
52
41
62
66
59
49
62
69
70
60
76
0
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
Source: Data from JFBA, Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 44, 206;
Chôkaiseikyû Jian Shûkei Hôkoku 2009 Nen (2009 Report on Disciplinary Request Cases) (2010) 61(4)
Jiyû to Seigi 178.
90
Kay-Wah Chan
despite the much higher number of bengoshi, both the absolute number of such serious
disciplinary cases (see Figure 5) and their proportion of the total number of disciplinary
cases (see Figure 6) were small. The period between 1993 and 2000 saw a relatively higher
number and ratio of serious disciplinary cases. As discussed above, the growth in bengoshi
population picked up pace around 1996 and has further accelerated since 2000. In
comparison to the period from 1993 to 2000, both the earlier period of 1988 to 1992 and the
more recent period from 2001 to 2009 show a lower ratio of serious disciplinary cases.
Figure 5: Disciplinary cases (by penalty type) (1988–2009)
Reprimand
100%
0
1
0
2
Suspension (< 1 year)
0
1
1
1
2
2
3
3
2
2
2
2
3
1
0
1
4
3
4
3
5
5
7
Disbarment
0
4
2
2
3
1
3
1
0
2
Order to Withdraw
Suspension (1–2 years)
2
3
3
4
2
4
2
2
3
1
1
3
2
5
4
4
13
7
4
6
23
18
20
6
6
1
23
8
27
29
22
3
12
13
14
19
16
14
10
5
10
4
60%
2
1
3
1
80%
1
2
19
20
40%
42
15
13
16
10
20%
7
3
19
17
11
17
40
35
34
12
28
27
23
40
31
17
5
0%
1988
1991
1994
1997
2000
2003
2006
2009
Source: Data from JFBA, Bengoshi Hakusho 2006 Nenban (Lawyers White Paper 2006 Edition) 181;
Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 206; Chôkaiseikyû Jian Shûkei
Hôkoku 2009 Nen (2009 Report on Disciplinary Request Cases) (2010) 61(4) Jiyû to Seigi 178.
Justice System Reform and Legal Ethics in Japan
91
Figure 6: Proportion of disciplinary cases with penalty of withdrawal order or disbarment
(1988–2009)
35
30.43
30
25
19.51
20
17.95
%
16.00
14.81
15
15.38
11.86
10
7.14
9.09
7.69
10.53
9.30
8.70
10.20
9.09
8.06
6.45
7.89
7.25
5.00
4.76
5
2.86
0
1988
1991
1994
1997
2000
2003
2006
2009
Source: Percentages calculated from the data as described in the Source for Figure 5.
Disciplined Bengoshi
Older bengoshi constituted the majority of disciplined bengoshi (Figure 7 overleaf), although
they form the minority in the bengoshi population. 48.3% of the bengoshi disciplined in 2008
were in their 60s, while bengoshi in this age group constituted only 15% of the bengoshi
population as at March 2009.97
The discussion above hints that the disciplined bengoshi are those who entered the
profession prior to the recent dramatic increase in the bengoshi population. This hypothesis
is supported by a close look at the breakdown of the disciplined bengoshi by years of
experience (Figure 8 overleaf). Those admitted in the latest nine years (in other words, during
the recent substantial increase in bengoshi numbers) constitute the smallest proportion of
disciplined bengoshi. In recent years, a significant proportion of disciplined bengoshi are
those with 30 to 39 years’ experience. They joined the profession well before the sharp
increase in bengoshi numbers. In addition, there is a trend of increase in the proportion of
97
JFBA (n 20) 49, 208.
92
Kay-Wah Chan
disciplinary cases among this group (see Figure 8). They constitute a substantially higher
percentage of disciplined bengoshi than their proportion in the bengoshi population (see
Table 2 overleaf). On the other hand, the most recently admitted group (with 1–9 years’
experience) constitute a substantially lower percentage of disciplined bengoshi as compared
with their proportion in the bengoshi population (see Table 2). As at 2008, members of this
Figure 7: Proportion of disciplined bengoshi (by age group) (1989–2008)
60
1989–2004
2005
2006
48.3
2007
2008
39.0
40
37.1
33.3
%
29.0
26.0
22.6
21.7
25.7
21.0
19.0
20
14.5
13.3
24.6
22.9
21.0
20.0
13.5
13.3
8.6
6.5
5.8 5.7
5.0
2.6
0
Below 40
40s
50s
Age
60s
70s and above
Source: Data from JFBA, Bengoshi Hakusho 2004 Nenban (Lawyers White Paper 2004 Edition) 141;
Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 208.
NB For the years 1989–2004 the data are for the period 1 January 1989 to 31 March 2004 and the figure
for ‘below 40’ relates to those aged 30–39.
Justice System Reform and Legal Ethics in Japan
93
30–39 years-of-experience group were generally admitted in 1969–78. At that time, only a
very small number of people could pass the extremely difficult bar examination and join
the profession yearly. Difficult entry may not necessarily guarantee high ethical standards
from all their members. This contradicts the view that difficult entry barriers can serve as an
‘ethical filter’.98
Figure 8: Proportion of disciplined bengoshi (by years of experience) (1989–2008)
50
1989–2004
2005
2006
40
37.8
2007
35.0
2008
33.3
30
29.1
27.4 27.5
30.0
25.7
%
21.7
21.0
22.6
21.0
20.0
18.6
20
16.1
21.7
17.1
15.0
12.9
10
8.7
8.78.6
8.3
6.2
6.0
0
1–9 years
10–19 years
20–29 years
30–39 years
40 years and
above
Source: Data from JFBA, Bengoshi Hakusho 2004 Nenban (Lawyers White Paper 2004 Edition) 141;
Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 208.
NB: For 1989–2004 the data are for the period 1 January 1989–31 March 2004.
98
See Sherill A Leonard, ‘Attorney Ethics and the Size of the Japanese Bar’ (1992) 39(1) Japan Quarterly 86, 90.
94
Kay-Wah Chan
Table 2: Breakdown of bengoshi population and disciplined bengoshi (by years of
experience)
Years of experience
1–9
10–19
20–29
30–39
40+
Percentage of bengoshi population
(31/3/2009)
41.9
17.3
13.7
13.7
13.4
Percentage of disciplined bengoshi
(2008)
8.3
20.0
15.0
35.0
21.7
Source: JFBA, Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 50, 208.
NB: Those who completed Legal Training and Research Institute training in 2000 and after are treated
as having 1–9 years’ experience; those from 1990–9 as having 10–19 years’ experience; those from
1980–9 as having 20–29 years’ experience; those from 1970–9 as having 30–39 years’ experience; and
those completed in 1969 and before, as having 40 + years’ experience.
4. CASE STUDY
A case study of 71 disciplinary cases published in the 2009 issues of Jiyû to Seigi confirms the
existence and continuation of the trend discussed above. The most recently admitted
members constituted the minority among the disciplined bengoshi (see Table 3). In addition,
the one withdrawal order case involving a bengoshi from the least experienced group was a
case of non-payment of the bar association membership fee99 (discussed in detail below)—
a personal matter unrelated to misconduct vis-à-vis clients and/or the administration of
justice. The penalty in this case was subsequently changed to suspension from practice for
two years.100 The groups admitted in the 1970s and 1980s have the worst record (see Table 3).
These findings contradict the claim that intensified competition, caused by the
substantial increase in bengoshi numbers, leads to a decline in legal ethics standards.
According to the logic behind this argument, if there is any competition, bengoshi who are
more seriously affected by competition should exhibit a higher rate of ethical violations.
There were concerns that intensification of competition might occur among less experienced
bengoshi.101 The least experienced bengoshi do in fact have comparatively lower income than
others (Figure 9 overleaf). However, as discussed above, they exhibit a lower discipline rate.
It has been pointed out that experienced bengoshi with established clients are less affected by
the increase in bengoshi admission.102 Figure 9 confirms this. Except for the most experienced
The case was announced in the June 2009 issue of Jiyû to Seigi, 208.
The change can be found in the announcement appearing in the January 2010 issue of Jiyû to Seigi, 187.
101 ‘Hiben teikei shobun 10 bai ni Saikin 10 nen bengoshi zou mo haikei (Against the background of the increase in
bengoshi, tenfold increase in disciplinary actions due to collaboration with non-lawyers in the recent 10 years)’
Asahi Shimbun (evening edition), Osaka 28 November 2005, 14.
102 See the article in Shûkan Daiyamondo (n 31) 38–39.
99
100
Justice System Reform and Legal Ethics in Japan
95
group (with 30 years’ experience or more), the more experienced the bengoshi the higher
their income will generally be. Income peaks when they have 20 to less than 30 years’
experience. It then starts to drop. As discussed above, the groups admitted in the 1970s and
1980s exhibit the highest number of disciplinary cases. Figure 9 shows that the group
admitted in the 1980s (falling into the categories of 15 to less than 20 years’ experience and
20 to less than 30 years’ experience) has high income. Members in the group admitted in the
1970s belong to either the group of 20 to less than 30 years’ experience or the group with 30
years’ experience or more. The former is the highest income group. The latter has a drop in
income. However, there is a big variation in income amongst members of this group. A
significant proportion of bengoshi in this group earned the lowest income. At the same time,
as compared with the two least experienced groups, there is a significantly higher proportion
earning income of 50 million yen or above (see Figure 9). The variation may be due to the
fact that this group includes very old bengoshi. As at the end of March 2009, 2,815 (10.5%)
and 1,074 (4.0%) bengoshi were in their 70s and 80s respectively.103 Some of these senior
members may be inactive in practice. In any case, the fact that the majority of disciplined
bengoshi are experienced members of the profession who are generally in the high income
group casts doubt on the correlation between the increase in bengoshi numbers and legal
ethics concerns.
Table 3: Breakdown of bengoshi population and disciplinary cases (by admission years)
2000–
1990s
1980s
1970s
1960s &
before
41.9
17.3
13.7
13.7
13.4
Reprimand cases
5
8˚
8 or 9*
11 or 12*+
5
Suspension (<1 year)
3
3˚
5
10+
3
Suspension (1–2 years)
1
1
1
1
1
Withdrawal Order
1#
1
2
0
0
Admission years
Percentage of bengoshi population
(31/3/2009)
Source: JFBA, Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 50; January–
December 2009 issues of Jiyû to Seigi.
˚ One bengoshi was subject to a reprimand under one disciplinary case and suspension for less than one year under
another disciplinary case.
* It is not absolutely clear whether the year of admission of one disciplined bengoshi was in the 1970s or 1980s.
+
One bengoshi was subject to a reprimand under one disciplinary case and suspension for less than one year under
another disciplinary case.
#
The penalty in this case was subsequently changed to suspension for two years.
103
JFBA (n 20) 49.
96
Kay-Wah Chan
Figure 9: Bengoshi income (by years of experience) (2008)
Yen
50 m -
45- ⬍50 m
40- ⬍45 m
35- ⬍40 m
30- ⬍35 m
20 - ⬍25 m
15- ⬍20 m
10- ⬍15 m
5– ⬍10 m
⬍5 m
25- ⬍30 m
100%
80%
60%
40%
20%
0%
⬍5 yrs
5- ⬍10 yrs
10- ⬍15 yrs
15- ⬍20 yrs
20- ⬍30 Yrs
30 yrs -
Source: JFBA, Bengoshi Hakusho 2009 Nenban (Lawyers White Paper 2009 Edition) 148.
It is beyond the scope of this paper to extensively examine the reasons why more ethical
violations are committed by the more experienced bengoshi. A brief logical speculation may,
however, be offered. More experienced bengoshi are likely to be sole proprietors or partners
in their own firms. Therefore, they are not subject to supervision and monitoring by
‘supervisory’ bengoshi. At the same time, many bengoshi are in small practices. As at March
2009, 29% of Japan’s bengoshi were sole practitioners and 14.1% were in firms consisting of
only two bengoshi.104 There is likely minimal or no monitoring or oversight by another
104
Ibid, 81.
Justice System Reform and Legal Ethics in Japan
97
bengoshi in such practices. Further, more experienced bengoshi may be very busy and as a
result handle cases poorly. In fact, among the aforementioned 71 cases studied, 24 (33.8%)
involved delay and/or inaction on the part of the bengoshi concerned. Amongst these cases,
only two bengoshi had relatively few years’ experience. They were admitted in 2000. The rest
were admitted in the 1990s or before. If the bengoshi were too busy, they must have had a lot
of cases, and this rebuts the proposition that over-competition and insufficient work lead to
non-ethical conduct. If they did not have an excessive number of cases, they should have
had time to handle the cases. There is no correlation with the increase in the bengoshi
population.
Older bengoshi also seem more likely to be involved in collaboration (or affiliation) with
non-bengoshi (hibenteikei in Japanese), which is an ethical violation and can be subject to
disciplinary action. According to the JFBA, 62 out of the 472 disciplinary cases (13%) from
1997 to 2005 were due to hibenteikei.105 Article 72 of the Act prohibits anybody other than
a bengoshi or a legal professional corporation from ‘engaging in the business of providing
legal advice or representation, handling arbitration matters, aiding in conciliation, or
providing other legal services in connection with any lawsuits, non-contentious cases, or
objections … or other general legal services, or acting as an intermediary in such matters’106
unless otherwise provided in the Act or other laws. Article 27 of the Act and Article 11 of the
Rules prohibit a bengoshi from collaborating (or affiliating) with anybody who is in violation
of the aforementioned Article 72. A bengoshi is prohibited from obtaining a referral of a
matter from a person who violates or is reasonably suspected of violating Article 72 of the
Act. A bengoshi is also prohibited from employing the services of such a person or allowing
his/her name to be utilised by such person.
It was reported in a 2003 newspaper article that no less than 70% of bengoshi disciplined
on this basis were aged 60 or above.107 Among the 71 disciplines cases mentioned above,
four cases were specifically described by the JFBA as hibenteikei cases or as involving
unlicensed practice.108 The bengoshi disciplined in these cases were aged 54, 67, 77 and 78.109
105
106
107
108
109
‘Tajûsaimu seiri taiho no bengoshi shôkai no gyôsha o saikensha risuto kara jogai (Multiple-debt management: the
bengoshi arrested has excluded his introducer from the list of creditors)’ Yomiuri Shimbun, Tokyo, 9 February
2008, 37.
Emphasis added.
‘Tajûsaimu no yami bengoshi no “hibenteikei” ôkô kokyaku yori “seiriya” no mikata sakunen chôkaishobun kako
saiaku mitôshi (The dark side of multiple-debts: bengoshi’s hibenteikei becomes rampant and they side with
seiriya rather than clients; it is foreseen that last year had the worst record of discipline sanctions)’ Tokyo
Shimbun, Tokyo, 19 August 2003, 10.
They were specifically described as hibenteikei and/or as involving violations of the regulatory provisions in
this respect. Details of these four cases can be found in the announcement in the March, July and September
2009 issues of Jiyû to Seigi, at 157, 186–7 and 115 respectively.
‘Kenbengoshikai hibenkatsudô yônin to taikaimeirei honnin wa hanron Nagasaki ken (Nagasaki prefecture:
prefectural bar association imposed withdrawal order on a bengoshi due to his permitting unlicensed practice
and the bengoshi objected)’ Asahi Shimbun (morning edition), Nagasaki, 7 April 2009, 25; ‘Hibenteikei de
Arayabengoshi o shobun (Disciplinary sanction imposed on bengoshi Araya due to hibenteikei)’ Sankei Shimbun,
Osaka, 31 March 2009, 28; ‘Meigikashi bengoshi o chôkaishobun tôkyô bengoshikai (Tokyo bar association
imposed disciplinary sanction on bengoshi who lent out his name)’ Yomiuri Shimbun, Tokyo, 29 October 2008,
37; and ‘Hibenteikei nadode bengoshi chôkaishobun tôkyô bengoshikai tôkyôto (Tokyo: Tokyo bar association
imposed disciplinary sanction on a bengoshi on grounds of hibenteikei etc)’ Asahi Shimbun (morning edition),
Tokyo, 13 May 2009, 23.
98
Kay-Wah Chan
In another three cases, there was no specific reference to hibenteikei or violations of
regulatory provisions in this respect but they involved delegation of matters to be handled
by staff or other non-bengoshi.110 The disciplined bengoshi in these cases were aged 61, 74 and
84.111
A JFBA official has raised concerns that the increase in bengoshi numbers might lead to
misconduct, such as collaboration with non-bengoshi to maintain a continuous income.112
With the prolonged recession following the bursting of the economy bubble, the
phenomenon of bengoshi ‘collaborating/affiliating’ with so-called seiriya (bankruptcy
fixers)113 or shôkaiya (introducers)114 has become prominent among disciplinary cases.115
While there was usually no or only one hibenteikei case in any of the years from 1991 to
1994, there was a gradual increase after that, and the annual figure reached 11 cases in 2000
and 2001, 10 cases in 2002 and 8 cases in 2003.116 These cases might or might not involve
seiriya. However, the increase in hibenteikei cases is probably due to the increase in people
with multiple-debt problems.117 Seiriya may introduce a debtor to a bengoshi ostensibly to
handle the case for the debtor.118 However, it may in reality be a case of hibenteikei with the
seiriya him- or herself setting up the infrastructure of a debt-management practice, such as
establishing an office and appointing staff.119 The seiriya then searches for a bengoshi who will
lend his/her ‘name’ out in return for a monthly remuneration from the seiriya.120 Debtmanagement cases in the bengoshi’s law firm are in fact left to the staff sent in by the seiriya.121
110
111
112
113
114
115
116
117
118
119
120
121
Details of these three cases can be found in the announcement in the March, May and December 2009 issues
of Jiyû to Seigi, at 159, 141 and 174 respectively.
Ichiro Ito, ‘Chôkaishobun—bengoshi shôdaku nashini shori—gyômuteishi tôkyô (Tokyo: Disciplinary sanction of
practice suspension imposed on bengoshi for handling a case without client’s consent)’ Mainichi Shimbun,
Tokyo, 9 July 2009, lk1; ‘Bengoshi 4 nin o chôkai shobun tôkyô bengoshikai (Tokyo bar associations imposed
disciplinary sanction on four bengoshi)’ Yomiuri Shimbun, Tokyo, 15 January 2009, 34; ‘Mushikaku shokuin ni
gyômu bengoshi o chôkai shobun tôkyô (Tokyo: A bengoshi who left operation of his practice to non-bengoshi staff
received disciplinary sanction)’ Yomiuri Shimbun, Tokyo, 12 December 2008, 34.
See the article in Asahi Shimbun (n 101).
For discussion of seiriya, their background and activities, see Peter Hill, ‘Heisei Yakuza: Burst Bubble and
Bôtaihô’ (2003) 6(1) Social Science Japan Journal 1, 7–8; Curtis J Milhaupt and Mark D West, ‘The Dark Side
of Private Ordering: An Institutional and Empirical Analysis of Organized Crime’ (2000) 67 University of
Chicago Law Review 41, 67.
They are ‘brokers who receive a fee … for introducing debtors to new loan sources’: Mark D West, Law in
Everyday Japan: Sex, Sumo, Suicide, and Statutes (University of Chicago Press, 2005) 229.
Yoshio Iimura, Masanori Shimizu, Takeshi Nishimura and Takeshi Yasuki, Bengoshi Rinri (Attorney Ethics)
(Jigakusha, 2009) 55; Kenichiro Yokoda, ‘Bengoshi rinri sarani takameyo (Improve bengoshi ethics further)’
Sankei Shimbun, Tokyo, 18 March 2002.
See the article in Asahi Shimbun (n 101) 14.
‘Kôri kinyû saimu no kusari (2) saimuseiri bijinesu daihanjô no bengoshi mo (The chain of high-interest loan and
debts (2): Prosperous bengoshi also engage in debt-management business)’ Yomiuri Shimbun, Tokyo, 22 February
2003, 38.
‘2 dai seiriya kokuhatsu e yowaki tajûsaimusha kuimono no kôzu shôkaiya to renkei takumina kanyû (Two big
seiriya will be charged: skillful inducement through collaboration with shôkaiya in the scheme to prey on weak
multiple-debtors)’ Sankei Shimbun, Tokyo, 28 February 2000.
Ibid.
Ibid.
Ibid.
Justice System Reform and Legal Ethics in Japan
99
In other cases, debtors may themselves seek out a bengoshi’s services, but the law practice may
in fact be ‘run’ by a seiriya.122 With the recent boom in grey-zone interest recovery cases (see
above), some bengoshi pass cases to seiriya in return for a ‘name-utilisation’ fee.123 In some
hibenteikei cases, the bengoshi receive cases from shôkaiya and pay commission fees to, or
share legal fees with, the shôkaiya.124 This is a violation of Paragraph 1 of Article 13 of the
Rules, which prohibits a bengoshi paying any fees or other compensation to anybody for a
client referral.
It has been pointed out that seiriya are targeting bengoshi who are not in active practice
due to old age or sickness, whose disciplinary sanctions have just ended, or who have heavy
debts.125 Therefore, although competition may also be relevant, engagement in hibenteikei,
at least if seiriya is/are involved, seems to be due mainly to the bengoshi’s personal attributes
such as old age, sickness, heavy debts or previous disciplinary sanctions. These have no direct
relation to the increase in bengoshi numbers.
There is also a concern that the substantial increase in bengoshi numbers weakened intragroup monitoring capabilities, and therefore resulted in an increase in ethical violations.126
Along this line of thinking, regions with a higher concentration of bengoshi (leading to more
competition than places with a lower concentration) should commit more ethical violations.
Prima facie, this seems to be the case. Tokyo and Osaka prefectures have the highest
concentration of bengoshi in Japan. Amongst the aforementioned 71 disciplinary cases, 35
cases (49.3%) concerned Tokyo bengoshi,127 and 10 cases (14%) Osaka bengoshi. The
proportion of disciplinary cases involving Tokyo and Osaka bengoshi also exceed their
respective proportion in the country as a whole (Table 4 overleaf). But, all the other prefectures with disciplined bengoshi, except only three,128 exhibit a higher ratio of disciplinary
cases than their respective proportion of the total number of bengoshi (see Table 4).
As Table 4 shows, remote/rural prefectures with low bengoshi concentrations and low
bengoshi-to-population ratios (such as Kagoshima, Ishikawa (Kanazawa), Kochi and Naga122
123
124
125
126
127
128
‘Shihô no byôsô daisanbu bengoshi wa seigi no mikata ka (6) (The focus of justice administration part 3: Are
bengoshi the supporters of justice? (6))’ Sankei Shimbun, Tokyo, 4 September 2001.
See the article in Shûkan Daiyamondo (n 77) 34.
See eg ‘Ôtani gurûpu kaishamei o tsugitsugi henkô shôkaiya tekihatsu nogare gisô kôsaku (Otani group changed
seiriya’s company names one after another as a camouflage scheme to avoid exposure)’ Sankei Shimbun, Tokyo,
4 March 2000; ‘72 sai no bengoshi gyômu teishi 2 kagetsu shôkaiya to saimuseiri (A 72-year-old bengoshi was
suspended from practice for two months due to his affiliation with shôkaiya on debt-management)’ Sankei
Shimbun, Tokyo, 26 August 1998.
‘Seiriya gurûpu futari o taiho 3 nenkan de yaku 3 oku en datsuzei yôgi (Two people of a seiriya group were arrested
on suspicion of tax evasion of about 300 million yen in three years)’ Asahi Shimbun (evening edition), Tokyo,
2 March 2000, 17. This paper does not intend to claim that seiriya might or might not have been involved in
the seven cases discussed above (the four hibenteikei cases and the three cases involving delegation of matters
to staff or other non-bengoshi).
See discussion in Leonard (n 98) 90 regarding the ‘deeply held assumption’ of this kind of intra-group
monitoring in ‘a small community’.
Two bengoshi were subject to two disciplinary actions each.
The ratios for Hiroshima (one of the three exceptions) are 1.41% for disciplinary cases and 1.42% for the
bengoshi population.
100
Kay-Wah Chan
Table 4: Disciplinary cases, distribution of bengoshi, population-to-bengoshi ratio and
disciplinary cases-to-bengoshi ratio (by prefecture)
Disciplinary Proportion
cases
of total
(proportion) bengoshi (%)
Population
to one
bengoshi
Disciplinary
cases per 100
bengoshi
Tokyo
35* (49.3%)
48.3
986
0.269
Osaka
10 (14.1%)
12.6
2,590
0.294
Kagoshima
3 (4.2%)
0.4
15,195
2.655
Gunma
2 (2.8%)
0.7
10,817
1.075
Hyogo
2 (2.8%)
2.2
9,516
0.341
Kyoto
2 (2.8%)
1.7
5,804
0.442
Nara
2 (2.8%)
0.5
10,884
1.550
Okinawa
2 (2.8%)
0.8
6,552
0.952
Saitama
2 (2.8%)
1.8
14,727
0.414
Miyagi (Sendai)
2 (2.8%)
1.2
7,524
0.643
Kanagawa (Yokohama)
2 (2.8%)
3.8
8,674
0.195
Aichi
1 (1.4%)
4.7
5,885
0.079
Hiroshima
1 (1.4%)
1.4
7,510
0.262
Ishikawa (Kanazawa)
1 (1.4%)
0.4
10,069
0.862
Kochi
1 (1.4%)
0.3
11,043
1.429
Nagasaki
1 (1.4%)
0.4
12,743
0.885
Okayama
1 (1.4%)
1.0
7,609
0.391
Shizuoka
1 (1.4%)
1.1
12,459
0.328
Source: Data from JFBA, January–December 2009 issues of Jiyû to Seigi; Bengoshi Hakusho 2009 Nenban
(Lawyers White Paper 2009 Edition) 45, 56.
* Two Tokyo bengoshi were each subject to two disciplinary cases.
Justice System Reform and Legal Ethics in Japan
101
saki) may also have disciplinary cases. The small number of bengoshi in these prefectures
should lead to comparatively stronger intra-group monitoring. A lower bengoshi population
should also mean less competition (if any). In fact, when Ii studied the bengoshi in the remote
Tôhoku region (Aomori, Akita, Iwate, Yamagata, Miyagi and Fukushima prefectures) and
classified them into three types,129 he found that there was little competition among them
because of the shortage of bengoshi.130
Another indication of weak or no competition in the regional areas is income levels.
Figure 10 shows the different proportions of bengoshi in the different income-level groups
in different prefectures/district court jurisdictional areas. The category ‘others’ are mainly
the most remote or rural prefectures/district court jurisdictional areas. It includes the
Figure 10: Bengoshi income (by prefecture/district court jurisdictional area) (2008)
Yen
⬍5 m
5- ⬍10 m
10- ⬍15 m
15- ⬍20 m
20- ⬍25 m
30- ⬍35 m
35- ⬍40 m
40- ⬍45 m
45- ⬍50 m
50 m -
50%
70%
0%
10%
20%
30%
40%
60%
80%
25- ⬍30 m
90%
100%
Tokyo
Osaka
Yokohama, Aichi,
Fukuoka
Sapporo, Sendai,
Saitama, Chiba,
Shizuoka, Kyoto,
Hyogo, Hiroshima
Others
Source: Graph constructed using data from JFBA, Bengoshgi Hakusho 2008 Nenban (Lawyers White
Paper 2008 Edition) 194.
These three types are: bengoshi of the Himawari offices (see discussion below), staff bengoshi at the Hô-terasu
(see discussion below), and others. Takayuki Ii, ‘Young Migrants from Big Cities: Measures for Dealing with the
Shortage of Legal Services in Japan’ (2009) 14(27) Journal of Japanese Law 59, 70.
130 Ibid.
129
102
Kay-Wah Chan
Kagoshima, Okinawa, Ishikawa (Kanazawa), Kochi, Nagasaki and Okayama prefectures,
which, as shown in Table 4, all have disciplinary cases. As shown in Figure 10, this category
of prefectures has the lowest proportion of bengoshi in the two lowest income levels.
According to the JFBA, the mean income of bengoshi in that year was 15.98 million yen.131
The category of ‘others’ has the lowest proportion of bengoshi who earned less than 15
million yen (Figure 10). This is not unexpected because regional prefectures have a higher
ratio of court cases to bengoshi population. There were 3.2 newly filed ordinary civil lawsuits
per bengoshi in Tokyo (6.3 in Osaka).132 The ratios, however, were 25.9, 19.0, 15.4 and 13.1
for Kagoshima, Nagasaki, Okinawa and Kochi respectively.133 In other words, bengoshi in
regional prefectures have more potential work on average. However, ethical violations also
occurred in the regional prefectures, for example Okinawa, Kochi, Kagoshima, Nagasaki and
Okayama (Table 4). Their proportion of disciplinary cases also exceeded their proportion of
bengoshi population in the country as a whole. The small size of their bengoshi communities
(see Table 4) has not facilitated strong in-group supervision and oversight. They had a high
ratio of disciplinary cases vis-à-vis bengoshi population (Table 4). On the other hand, Tokyo
and Osaka, which have high bengoshi concentrations and large bengoshi communities, have
relatively low ratios.
Ethical violations in some remote/rural prefectures tend to be serious. One out of the
three disciplinary cases involving Kagoshima bengoshi resulted in the second heaviest
penalty—a withdrawal order (Table 5). This penalty was also given to the only disciplinary
case involving a Nagasaki bengoshi. Penalties in the majority of disciplinary cases in Tokyo
fell into the two lightest categories (Table 5).134 All the disciplinary cases involving Osaka
bengoshi resulted in these two lightest penalties. In addition, one of the two withdrawal order
cases in Tokyo was a result of the relevant bengoshi’s non-payment of bar association
membership fees (for 44 months),135 which, as discussed above, may be considered personal
and unrelated to misconduct vis-à-vis clients and/or the administration of justice.
Furthermore, this penalty was subsequently changed to a suspension for two years after the
bengoshi concerned tendered payment of the outstanding membership fees.136 There should
not be regional variations in disciplinary standards because local bar associations’ decisions
are subject to possible objection or appeal to the JFBA.137 In short, there is no correlation
between ethical violations and the extent of competition (if any).
131
132
133
134
135
136
137
JFBA (n 85) 194.
JFBA (n 20) 57.
Ibid.
The second lightest penalty provided for under the Act (suspension) is sub-divided into two categories—
suspension for less than one year and suspension for one to two years—to differentiate the degree of seriousness
of cases that receive such a penalty.
The announcement of the case can be found in the June 2009 issue of Jiyû to Seigi, 208.
The announcement of the change can be found in the January 2010 issue of Jiyû to Seigi, 187.
The grievant can lodge an objection to the JFBA as discussed above. A bengoshi can appeal to the JFBA against
a disciplinary sanction imposed by the local bar association, which will be examined by the JFBA-DAC (Attorney
Act, Art 59).
Justice System Reform and Legal Ethics in Japan
103
Table 5: Disciplinary cases (by penalty type and by prefecture)
Reprimand
Suspension
(< 1 year)
Suspension
(1–2 years)
Withdrawal
order
Proportion
of total
bengoshi
(%)
Population
to one
bengoshi
Tokyo
18
13
2
2*
48.3
986
Osaka
5
5
12.6
2,590
Kagoshima
2
0.4
15,195
0.7
10,817
Gunma
1
2
Hyogo
2
2.2
9,516
Kyoto
2
1.7
5,804
Nara
2
0.5
10,884
Okinawa
1
0.8
6,552
Saitama
2
1.8
14,727
Miyagi
(Sendai)
2
1.2
7,524
Kanagawa
(Yokohama)
1
1
3.8
8,674
Aichi
1
4.7
5,885
Hiroshima
1
1.4
7,510
0.4
10,069
0.3
11,043
0.4
12,743
1.0
7,609
1.1
12,459
1
Ishikawa
(Kanazawa)
1
Kochi
1
Nagasaki
1
Okayama
Shizuoka
1
1
Source: Data from JFBA, January–December 2009 issues of Jiyû to Seigi; Bengoshi Hakusho 2009 Nenban
(Lawyers White Paper 2009 Edition) 56.
* One of these two cases subsequently changed to a suspension for two years.
104
Kay-Wah Chan
5. IS THERE AN OVER-SUPPLY OF BENGOSHI?
The strongest opposition to the increase in bengoshi numbers comes from the regional bar
associations. As we saw above, a number of such regional associations have demanded a reconsideration of the increase.138 However, there is in fact an acute shortage of bengoshi in
remote and rural areas.139 The above discussion referred to the high ratio of litigation cases
to bengoshi in these areas. Uneven distribution of bengoshi is found not only between
metropolitan prefectures and remote and rural prefectures but also between different areas
within remote and rural prefectures. Each prefecture (except Hokkaido) has one district
court, with branches in different regions within the prefecture. There are 203 district court
branches throughout the country. It would be expected that the jurisdictional area of each
district court branch would have at least two practising bengoshi.140 However, as at August
2009, out of these 203 areas, there were still two regions with no bengoshi (called ‘zero-zones’
in Japan) and 13 regions with only one bengoshi each (called ‘one-zones’).141 Although many
of these zero-zones and one-zones are in remote and rural regions, it does not mean that
their populations are too small to justify the presence of two or more practising bengoshi. As
at 9 October 2007, the zero-zones and one-zones had a bengoshi-to-population ratio ranging
from 1:23,693 to 1:220,930142 compared with a national ratio in 2008/2009 of 1:4,742.143
The prefectural ratios range from the lowest (Tokyo) of 1:986 to the highest (Ibaraki) of
1:19,629.144 In addition, even prefectures that do not have zero- or one-zones may still have
a shortage of bengoshi. For example, according to the Vice-President of Yamagata Bar
Association, his prefecture (which does not have a zero- or one-zone) still needs more
bengoshi.145 Moreover, over half of the bengoshi in the prefecture are in their 50s or over,
who will need to be replaced as they retire.146 The Vice-President of the Hiroshima Bar
Association has also commented that there is still an insufficient supply of bengoshi in three
district court branch jurisdictional areas in his prefecture;147 and, according to the VicePresident of Kagawa Bar Association, all regions in his prefecture still have insufficient
138
139
140
141
142
143
144
145
146
147
See text at n 25, n 26 and n 30.
See discussions in eg Miyazawa (n 1) 47; Ito (n 96) 58–59; T Sato, ‘Chi-iki Shakai to Bengoshi (Regional Society
and Bengoshi)’ in Y Wada and S Sato (eds), Bengoshi Katsudô o Toinaosu (Re-questioning Bengoshi’s Activities)
(Shôjihômu, 2004) 258.
This is because a civil action will involve at least two parties and two bengoshi are needed to provide legal services
and to avoid conflicts of interest.
JFBA (n 20) 227.
JFBA Bengoshi Gyômu Kaikaku I-Inkai 21 Seiki no Bengoshizô Kenkyû Purojekkutochîmu (ed), Bengoshi
Kaikaku Ron: Kore kara no Bengoshi to Jimusho Keiei (Reform of Bengoshi: Bengoshi and Law Firm Management
from Now on) (Gyôsei, 2008) 102.
JFBA (n 20) 56.
Ibid.
Akira Tanaka, ‘Yamagata Ken no Bengoshi Juyô (The Need for Bengoshi in Yamagata Prefecture)’ (2010) 61(1)
Jiyû to Seigi 84, 84–85.
Ibid, 85.
Takafumi Yamate, ‘Hiroshima Ken no Bengoshi Juyô (The Need for Bengoshi in Hiroshima Prefecture)’ (2010)
61(1) Jiyû to Seigi 86, 87.
Justice System Reform and Legal Ethics in Japan
105
bengoshi and there is particularly great demand for bengoshi in two district court branch
jurisdictional regions.148
As at 1 August 2009, Kagoshima prefecture had one zero-zone. Okayama and Nagasaki
prefectures each had a one-zone.149 There should be unmet legal needs and an absence of
over-competition in these prefectures. However, ethical violations still occurred (Table 4). In
addition to the zero- and one-zones, there are other district court jurisdictional regions with
more than one but still a very small number of bengoshi.150 In regional prefectures, bengoshi
tend to concentrate in the relatively large cities, where the district courts (not their branches)
and the prefectural government offices are situated.151
The JFBA has been trying to reduce the number of these zero- and one-zones, and
launched the ‘Himawari law offices’ project in 2000 to set up law offices mainly in zero- or
one-zones.152 The JFBA provides support for the set-up costs of these offices and additional
funding if their income fails to reach a fixed amount.153 The JFBA also announces vacant
positions in these Himawari offices.154 Bengoshi will work there for a term of two or three
years155 and can keep their profits.156 However, they cannot be retained as advisors to
companies or organisations.157 The number of zero- and one-zones has in fact been reduced
substantially. In July 1993, there were 50 zero-zones and 24 one-zones.158 In August 2009,
there were 2 zero-zones and 13 one-zones.159 However, very few of those bengoshi who
worked in the Himawari law offices stayed after their term expired: only 19 out of 120
bengoshi did so.160 Many returned to the big cities.161 This is not because of insufficient work
in these areas. As found by Ii, North Tôhoku Himawari bengoshi have heavy caseloads and
clients’ waiting time for a consultation can be as long as one week to one month.162 Similarly,
it was reported in a newspaper editorial that around 288,000 inquiries were made at the call
centres of the Japan Legal Support Center (Hô-terasu)163 in 2008.164
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
Yoichi Tokuda, ‘Kagawa Ken no Bengoshi Juyô (The Need for Bengoshi in Kagawa Prefecture)’ (2010) 61(3) Jiyû
to Seigi 85, 86.
JFBA (n 20) 228.
See Ii’s study on distribution of bengoshi in the North Tôhoku region of Japan in Ii (n 129) 66, 68.
Sato (n 139) 258. Data also confirm this (see Kenji Kamada, ‘Miyagi Ken no Bengoshi Juyô (The Need for Bengoshi
in Miyagi Prefecture)’ (2010) 61(7) Jiyû to Seigi 80, 80; Shinji Kitagawa, ‘Fukui Ken no Bengoshi Juyô (The Need
for Bengoshi in Fukui Prefecture)’ (2010) 61(8) Jiyû to Seigi 70, 70; Yamate (n 147) 86; and Tokuda (n 148) 85).
Ii (n 129) 62.
JFBA, ‘Tsutsu’uraura ni Himawari no Hana o: Himawari Kikin Hôritsujimusho no Goan’nai (Spreading the
Sunflower [Himawari] throughout the country: A Guide to the Himawari Foundation Law Offices)’ (2009),
www.nichibenren.or.jp/ja/publication/booklet/data/himawarikikin.pdf (in Japanese, accessed 27 May 2011).
Ii (n 129) 62.
JFBA (n 153).
Ii (n 129) 62.
Ibid.
Ibid, 61.
JFBA (n 20) 227.
Ii (n 129) 62.
See Ii’s study on Himawari bengoshi in North Tôhoku region (ibid, 72).
Ibid, 73.
Hô-terasu is a government-funded agency established under the justice system reform ‘to render promptly and
properly support related to comprehensive legal support’ (Comprehensive Legal Support Act, Art 14). They
cont’d
106
Kay-Wah Chan
Despite the substantial increase in bengoshi numbers in the recent years, there is still an
uneven distribution of bengoshi and substantial unmet legal needs in remote and rural
regions. Newly admitted bengoshi are reported to have difficulty finding jobs.165 Yet they still
prefer to concentrate in metropolitan cities and are reluctant to move to remote and rural
areas.166 Furthermore, a recent survey found that the demand for legal services in Japanese
society has increased. In the survey, conducted by the Ministry of Justice in 2009, 87.6% of
respondents said they felt that legal problems in society had increased as compared with 10
years ago.167 When asked whether they would consult bengoshi if they experienced legal
problems, 84.8% of respondents replied in the affirmative.168 There is no significant
difference between big cities and small towns.169 There is clearly a demand for legal services
in both metropolitan and remote and rural areas.
Competition (if any) may not be as serious as it seems. This is demonstrated by another
phenomenon. An amendment to the Act in 2003 (effective from April 2004) liberalised
bengoshi’s fees. Prior to this, fee standards were set by the bar associations. Despite this
change, many bengoshi still charge fees according to the abolished scale.170 If there is overcompetition, liberalisation should have brought about a price war and reduced fees.
In addition, as compared with the past, bengoshi now seem to have more diversified
career paths beyond private practice. The increase in new members of the profession
therefore does not necessarily create an intensification of competition because more bengoshi
are choosing to work in-house within companies. This used to be extremely rare in Japan,171
but Japanese enterprises’ attitudes towards employing in-house bengoshi have changed.
While only 64 bengoshi worked in-house within enterprises in September 2001, there were
354 in June 2009.172 It is very likely that this trend of increase will continue. For example,
Mitsubishi Corporation was reported to have eight in-house bengoshi as at the end of June
2009;173 it was recently reported to have 12.174 Similarly, there is a recent trend of sharp
increase in the number of bengoshi working in the civil service or public bodies on contract:
from 49 in 2004 to 81 in 2009.175
employ staff bengoshi. This system commenced in October 2006. While generally Hô-terasu offices can only
handle referral services, those offices in places with bengoshi scarcity are permitted to offer legal services.
164 Editorial, ‘Utsunomiya shinkaichô: shihôkaikaku o tomeruna (Don’t stop the justice system reform, new President
Mr Utsunomiya)’ Asahi Shimbun (morning edition), Tokyo, 12 March 2010, 3.
165
166
167
168
169
170
171
172
173
174
175
See eg Editorial, ‘Hôsô jinkô kaikaku niwa ima ga funbari toki da (The number of legal professionals: now is the
time to make an effort regarding the reform)’ Mainichi Shimbun (morning and evening editions), Tokyo, 20
August 2008; the article in Asahi Shimbun (n 21); and the Editorial in Asahi Shimbun (n 164).
K Sorimachi, Shigyô Saisei (Regeneration of Professions) (Diamond, 2009) 159.
Cabinet Office, ‘Sôgô Hôritsu Shien ni Kansuru Yoron Chôsa (Survey on Comprehensive Legal Support)’ (Tokyo,
2009), www8.cao.go.jp/survey/h20/h20-houterasu/index.html (in Japanese, accessed 9 July 2010).
Ibid.
Ibid.
Ito (n 96) 70.
See M Abe, ‘Kigyôhômu to Bengoshi (Corporate Legal Affairs and Bengoshi)’ in Wada and Sato (n 139) 274.
JFBA (n 20) 4.
Ibid, 5.
‘Bengoshi shain wa sekai no jôshiki (In-house lawyers is a common phenomenon in the world)’ Shûkan Tôyô
Keizai (Weekly Toyo Keizai), Tokyo, 22 May 2010, 45.
JFBA (n 20) 3.
Justice System Reform and Legal Ethics in Japan
107
Why, then, is there strong opposition to the increase in bengoshi numbers on the part of
the profession, particularly those from remote and rural areas? Protectionism may be a
reason. However, it may also be because many bengoshi are reluctant to accept change, despite
socio-economic development in Japan. As discussed above, recent years have seen a rapid
development in the demand for in-house bengoshi in the public and private sectors. The
private sector also has a greater need for external legal services. This has contributed to rapid
growth in the commercial legal market in Japan, which used to be very small, and the
emergence and expansion of large law firms.176 Commercial bengoshi are in favour of the
increase in bengoshi numbers.177 The largest firms continue to employ a significant number
of newly admitted bengoshi when they graduate from the Legal Training and Research
Institute.178 These firms need an adequate supply of newly admitted bengoshi to facilitate
their expansion.
On the other hand, many other bengoshi are insisting on maintaining their traditional
style of practice: clustering in the larger cities, conducting small-scale operations, and
focusing on general litigation cases. As at 1 February 2010, 47.9% and 12.4% of the total
number of bengoshi were based in Tokyo and Osaka respectively.179 As at March 2009, 65.4%
of bengoshi were in firms with no more than five bengoshi.180 They seldom specialise.181 Many
bengoshi seem reluctant to change.182 This may particularly be the case for those with longer
practice experience. It may also explain why, as discussed above, the majority of disciplined
bengoshi are experienced members of the profession.
6. CONCLUSION
Should the increase in bengoshi numbers be slowed down to maintain legal ethics standards?
The discussions and analysis above show that there is no conclusive evidence of a correlation
between such an increase and legal ethics concerns in Japan. There is, however, a shortage of
bengoshi in remote and rural regions. A scaling-back of justice system reform might not raise
legal ethics standards, but it would definitely affect the satisfaction of legal demands in
society, particularly in remote and rural regions. People with legal needs would be denied
user-friendly access to legal services, and this is tantamount to a denial of access to justice.
176
177
178
179
180
181
182
See Chan (n 3) 155.
See eg the article in Shûkan Tôyô Keizai (Weekly Toyo Keizai) (n 31) 56; Ryou Hamano, ‘The Turn Toward Law:
The Emergence of Corporate Law Firms in Contemporary Japan’ in Alford (n 4) 187.
‘500 nin jidai ga mokuzen jun’ôtei ika ga kukyô ni (With imminent emergence of a firm of 500 the second tier
and smaller firms are in trouble)’ Shûkan Tôyô Keizai (Weekly Toyo Keizai), Tokyo, 22 May 2010, 78.
JFBA, ‘Bengoshi Kai Betsu Kai-in Sû (Number of members by bar association)’, www.nichibenren.or.jp/ja/jfba_
info/membership/data/100201.pdf (in Japanese, accessed 19 February 2010).
JFBA (n 20) 81.
As pointed out by Professor Fukui, specialists are few and far between (Osamu Ashizaki, ‘Hôsôkai de Ima Nani
ga Okotteiru no ka? (What is happening in the legal professions now?)’ [2008] The Judicial World 3, 8).
Kamiya described bengoshi as inclined to maintain the status quo (Masako Kamiya, ‘Structural and Institutional
Arrangements of Legal Education: Japan’ (2006) 24(1) Wisconsin International Law Journal 153, 153).
108
Kay-Wah Chan
Article 32 of the Japanese Constitution stipulates that ‘no person shall be denied the
right of access to the courts’. Article 17 provides the people with the right to ‘sue for redress
as provided by law from the State or a public entity’ if they have suffered damage as a result
of an illegal act on the part of a public official. Under Article 37, the accused in criminal
cases are guaranteed ‘the right to a speedy and public trial by an impartial tribunal’. This
Article further stipulates that at all times the accused shall have assistance from competent
bengoshi and, if the accused himself or herself cannot secure one, the State shall assign one
to him or her. In order for all people to be able to enjoy such constitutional rights, there
must be an adequate supply of bengoshi throughout Japan in both metropolitan cities and
remote or rural areas.
The current legal system in Japan is clearly defective. There is a shortage of bengoshi in
the remote and rural regions, despite the presence of unmet legal needs. Article 1 of the Act
sets out the mission of the bengoshi profession as ‘protecting fundamental human rights and
achieving social justice’. It also stipulates that, ‘in keeping with the aforesaid mission’,
bengoshi shall perform their ‘duties in good faith’ and endeavour to ‘maintain the social
order and to improve the legal system’. This is reiterated in the JFBA Articles and the Rules.
A practising bengoshi ‘shall always be conscious that he/she shall be the guardian of human
rights and that he/she shall realize social justice’.183 A bengoshi shall strive to ‘protect
fundamental human rights and realise social justice’.184 The ethical regime has placed an
onus of responsibility on the bengoshi profession to ‘improve the legal system’ and to achieve
‘social justice’. It is doubtful whether social justice can be achieved if legal services are only
available to those in urban areas. Article 14 of the Constitution in fact provides for the
equality of all people under the law. The bengoshi profession has a duty to facilitate, and not
hinder, access to the legal system. Opposition to the justice system reform agenda of
increasing the number of bengoshi may therefore be inconsistent with the bengoshi
profession’s (ethical) responsibility.
183
184
JFBA Articles, Art 10.
Basic Rules on the Duties of Practising Attorneys, Art 1.