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Tuesday, Oct. 9, 2012
THE ZEIT GIST
A guide to navigating Japan's exotic legal-eagle menagerie
A common mistake made by foreigners trying to accomplish things in Japan is to go to a lawyer (bengoshi) with their problems. It is not a mistake because of a bunch of hooey about Japanese people not looking to the law for solutions, but because a lawyer may not be the best man or woman for the job.
Although juxtaposing the number of lawyers in Japan (about 32,000) and the United States (1.2 million and counting) is a staple of journalists and jurists alike, it is a largely meaningless comparison. Unlike countries such as the U.S., where everyone in the business of being paid to provide legal services is a member of one or two licensed professions, Japan actually has an almost tribal legal service industry in which lawyers are the minority.
A Japanese lawyer can provide you with a broad range of legal services, and many will doubtless be happy to take your money to do so, particularly in light of recent government policy aimed at significantly (some say excessively) increasing their numbers. However, lawyers must pass an exceptionally competitive exam and go through years of training, an investment of time and energy that may be reflected in the fees they charge.
Furthermore, lawyers are trained first and foremost as litigators — to represent clients in Japanese courtrooms. Many end up in small firms with general practices, meaning they may not always be the best option when it comes to certain specific issues, such as starting an Internet business, resolving a tax problem or negotiating with a labor union, for example.
For certain matters it may make more sense to go to a different type of professional. For example, there are shihō shoshi (sometimes called judicial scriveners in English, though their trade association has taken to using the term "shiho-shoshi lawyer") who can prepare legal documents and handle real estate transactions and other matters where registration with the local Legal Affairs Bureau is required. Some may even represent clients in small-claims court.
Then there are the gyōsei shoshi, or "administrative scriveners," who some foreign residents may know since they handle a great deal of immigration law matters (and occasionally try to get away with calling themselves "immigration lawyers," and their offices "law offices"). They too can help prepare legal documents and provide relevant legal advice.
Got an employment-related problem? There is a whole profession devoted to these, the shakai hoken rōmushi, or "labor and social security attorney," as they have recently started to call themselves in English. Professionals with this qualification can help you with employment-related documents and filings; some may represent disputants before labor tribunals.
Most tax matters can be handled by a zeirishi (certified public tax accountant, though this is sometimes also translated as "tax attorney"). Patent attorneys (benrishi) are another distinct profession whose specialty is hopefully obvious. There is even a profession that deals exclusively with ship-related legal matters, the kaiji dairishi, or "marine procedure commission agent."
This list is by no means exhaustive, and only includes those professions that provide some type of legal services to the public on a fee basis, but we are already talking about a legion of 180,000 legal professionals. If you add to this number the various types of specialized legal qualifications that exist within government organizations (family court investigators, judicial clerks, assistant prosecutors, etc.), what could broadly be called "the legal profession" in Japan becomes an entire menagerie that includes some fairly exotic species.
In addition to providing some sort of legal service to the public, the licensed legal professions in Japan have a few other things in common. First of all, each has its own distinct lapel badge. Second, qualifying for them typically involves passing a highly competitive exam — the pass rate for the 2011 labor and social security attorney exam was a whopping 7.2 percent, for example, much lower than the 23.5 percent pass rate for the bar exam the same year.
Third, and contrary to Japanese demographics in general, many of the professions are in growth mode, not just in terms of numbers but in the scope of their permitted activities. In recent years nonlawyer legal professionals have become increasingly able to represent clients in judicial or quasijudicial proceedings. In addition, with the government encouraging resolution of more disputes through alternative means, many of the nonlawyer legal professions have set up mediation centers.
This plethora of legal service providers is probably confusing to Japanese people and foreigners alike — advertisements for legal services (consumer debt-resolution services in particular) are common on subways and trains, but you sometimes have to look closely to see whether the advertiser is a lawyer (bengoshi) or a shihō shoshi lawyer.
I have seen websites in English targeting the foreign community where the professional calls himself an immigration lawyer and has a "J.D." (Juris Doctor) after his name. The latter indicates he has graduated from law school, but since he has not passed the national bar exam, he is not a "real" lawyer (i.e., a bengoshi) who can represent clients in court. The tremendous amount of overlap and vast gray areas in the type of services each profession is licensed to provide can only add to the confusion.
With the general public barely understanding the difference between the various legal professions, the fact there is currently a heated debate over whether there may suddenly be too many of one type — lawyers (bengoshi) — seems almost bizarre. I have sat in countless symposia, seminars and other fora where very important people manage to discuss the needs of the Japanese people for legal services and what the "correct" number of lawyers might be, without ever even mentioning the existence of labor and social security attorneys or any of the other licensed professionals.
So what is special about lawyers that they get all the attention, and why does nobody seem to care about how many of these other legal professionals there are?
One hint may lie in the fact that lawyers (bengoshi) are the only legal profession that is self-regulated. All of the others are under the jurisdiction of one of the ministries of the central government: Patent attorneys are under the Patent Agency, which is attached to the Ministry of Economy, Trade and Industry; labor and social security attorneys are subject to regulation by the Ministry of Health, Labor and Welfare, and so on. Essentially, most of the important ministries have their own captive legal profession.
Moreover, each of the other legal professions has an exception that allows people with suitable government experience to obtain a license either without sitting the exam at all or with a waiver for many of the exam subjects. In other words, they are an employment option for retired bureaucrats. This might be one reason why nobody (who matters) seems compelled to debate whether population levels in these other professions are "correct."
Yet another legal profession — public notaries (kōshōnin) — nicely illustrates the role of government in legal services. Public notaries not only notarize signatures and seal impressions, but also review and certify wills, promissory notes and certain other types of documents for which statutory formalities may be critical to their legal validity.
(Useful tip: If you ever need something notarized for use in another country, rather than using a Japanese public notary, the embassy of that country is probably a better place to go. Furthermore, if you need a bunch of documents notarized for use in the United States, you might save money (or at least break even) by taking a cheap trip to Guam, where a copy mart will do notarizations for $10 a pop, compared to $50 at the U.S. Embassy. Be sure to check that any type of notarization will do before booking a flight, however.)
Under Japan's Public Notary Act (which, despite having recently been updated by the Justice Ministry to cover electronic documents, remains written in classical Japanese), notaries are supposed to be appointed by the minister of justice from people who have passed the public notary exam and completed a six-month apprenticeship, requirements that are waived for judges, prosecutors and lawyers. In reality, the exam has never been held (you see, the law doesn't say the exam needs to be held every year, as is the case with the statutes governing most of the other legal professions), and a "provisional" exception in the law has been used for decades to appoint notaries almost exclusively from the ranks of retiring judges, prosecutors (who are understood to actually run the Justice Ministry) and other legal system insiders.
Public notaries obtain their compensation from the fees they charge for their services. Here they probably get a nice boost from the Company Act (also administered by the Justice Ministry), which requires that every newly incorporated company have its charter certified by a public notary. With the fee for this service set by regulations at ¥50,000 and 80,000 new incorporations in 2011, it works out to an average ¥8 million in annual revenue from incorporations alone for each of the country's roughly 500 notaries.
The notarial fee is essentially an incorporation tax, just one that never gets paid into the public treasury. Combined with actual incorporation taxes of at least ¥150,000, the notarial fee makes Japan an expensive place to set up a business.
By appointing only experienced jurists as notaries, the Justice Ministry may simply be trying to protect the public from having their legal documents invalidated by incompetent service providers. Yet because they are deemed to be a special category of public servant, notaries are not even personally liable if this does happen; persons harmed by notarial negligence (which happens occasionally, such as a recent case in which a notary caused a will to be invalidated by making the very basic error of having it witnessed by the spouse of a beneficiary) must sue the government for redress.
Suing the government is a nice segue into one of the other things that is special about bengoshi lawyers. Despite Japan's reputation as a culture of wa (harmony), the government seems perfectly happy to have people make all sorts of adversarial claims against each other so long as it does not result in too much serious litigation. As we have already seen, Japan's other legal professions are playing an increasing role in helping resolve these types of low-level civil disputes. It is only lawyers who can represent clients at all levels of the court system — not only in civil suits, but also in criminal, constitutional and administrative litigation, where it is the government on the other side.
Lawyers are thus the only legal profession that can represent people in disputes with the government. Looked at in this light, the debate over the "correct" number of lawyers takes on a new dimension, since it is essentially a debate about how few legal professionals there should be who are empowered to challenge — and maybe even stop or delay — governmental conduct through courtroom proceedings.
Of course, limiting the supply of people who are licensed to obstruct bureaucrats may be one of the reasons why Japan is so famously well-governed. For people who just want to get things done without taking on the Leviathan, however, getting the best legal services for the best price will probably continue to involve negotiating a confusing maze through a menagerie of professions.
Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and ideas to firstname.lastname@example.org .