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| THE 'SHAPE OF JAPAN IN THE 21st CENTURY' SERIES, No. 19 ARTICLES 30 (3) AND 72 OF the ATTORNEY LAW: PUBLIC ENEMY #1 |
| 1. | Article 72 of the Attorney Law: The Root of all Evil | ||||
| Japan's judicial reforms have at last entered the home stretch. The bill establishing graduate law schools will be presented in the current extraordinary Diet session and it is expected that reforms to the Attorney Law, including reforms to Articles 30 and 72, will be passed during ordinary Diet sessions in 2003. These major reforms are timed more than 50 years after the Attorney Law was established in 1949. However, if the present national legal examination were currently producing large numbers of successful candidates, most issues would have already been resolved. Yet it is still the case, even now, that people in the community find it hard to know where to find the legal specialists they need, what their fields of specialty are and what fees they charge. Moreover, the conclusion of the WTO negotiations on liberalizing trade in services will probably mean that even foreign attorneys can practice in Japanese law in Japan, this mutual recognition having already taken place in EU nations. Further, under reforms to the Foreign Attorneys Law, the situation is approaching where foreign attorneys will be able to employ Japanese attorneys and conduct proceedings in Japan. Of course, this latter development itself should be viewed from the perspective of users of the legal system and welcomed. However, viewed from the national interest, it is surely the case that Japan is not yet legally equipped to meet such a change. Japan is still unable to overcome a masochistic view of history and despite adherence to Japan's sovereign statehood under international law and protection of the national interest being axiomatic, the reality is that her national identity (tradition and culture) are being progressively diluted in the name of internationalization and the doctrine of international cooperation. It is vexing to stand by and watch even the justice system affected by this dilution. This national crisis will be resolved by amending Article 72 of the Attorney Law so that the legal services the community needs are provided by legal professionals other than attorneys, including patent attorneys, judicial scriveners, certified tax accountants, social insurance and labor affairs consultants, administrative scriveners, certified public accountants, real estate appraisers and real estate surveyors. These specialists no doubt number in excess of 200,000. If they are given the authority I speak of, the dearth of attorneys will be instantly resolved and community inconvenience and the national crisis averted. It goes without saying that these legal specialists lack basic knowledge or working experience in handling legal matters such as settlements, conciliations and contracts. However, it is not that they don't have the ability and aptitude to handle legal matters. Accordingly, if they are required to undergo training they will be able to acquire the practical ability necessary for meeting the community's needs. This is apparent even from the requirements of the current reform provisions that allow various specialists, in particular judicial scriveners and patent attorneys, to handle lawsuits subject to the requirement that they undergo training. Approving the handling of legal matters short of lawsuits, settlements, conciliations and contracts, in fields related to the work of various legal specialists will cause no harm. (The deliberations concerning ADR are making progress.) The only reason this has not been done until now is that it was forbidden by Article 72 of the Attorney Law. If the required training is carried out, it will be achievable, just as in the case of judicial scriveners and patent attorneys. The ability and aptitude are there. My suggestion is that those with the ability and aptitude perform these tasks, not that all legal specialists must do so. There are registered attorneys who do not practice as attorneys and the same situation would apply. Article 72 of the Attorney Law also obstructs healthy compliance by business. In other words, this provision prohibits group business, that is, related companies, from having their legal matters handled by a company within the group. If one speaks of a legal entity within a capital group, that is at law a different legal entity, clearly falling within the 'legal matters' of an unrelated person under the terms of Article 72. However, as the corporate structure surrounding our nation transforms, corporate reorganizations using mergers, splits, divisions, stock swapping and holding companies are a daily occurrence. Moreover, outsourcing by splitting off the administrative branch is becoming standard from the perspective of implementing efficient corporate management and restructuring. It is Article 72 that directly prohibits the splitting off of legal branches as a way of dealing with such changes in corporate structure. Article 72 is root of all evil. Whilst I believe its complete abolition is the best course, the following is my realistic proposal for its reform. Article 72: Reform Proposal 1. The Specialist Legal Professions In order to make active use of the specialist legal professions, the prohibition on areas of legal practice under Article 72 of the Attorney Law, such as [1] legal consultations and [2] acting as agent in conciliations, settlements and contracts, matters short of lawsuits, must be lifted, and the unfettered handling of these matters by specialist legal professions must be recognized. In respect of the order of legal reform, since the laws concerning the specialist legal professions are special laws, in relation to which Article 72 of the Attorney Law is a general law, it would be consistent to first enact the ability to practice under the laws concerning the specialist legal professions, then lay down general provisions in the Attorney Law. Since the root of the problem is the actual regulation of the specialized legal professions' areas of practice by Article 72, this should be brought to an end and the duties of the specialized legal professions covered within the laws relating to those professions. This step would mean the freedom of economic activity of the specialized legal professions would be completely guaranteed by the provisions of each profession's own law. Reform Proposals Patent Attorney Law Reform Proposal "Patent attorneys may conduct legal consultations and act as agents in conciliations, settlements and contracts regulated by the paragraphs of Article 4 of the Patent Attorney Law." Judicial Scrivener Law Reform Proposal "In relation to judicial scriveners, in connection with the current revision of Article 3 Item 5 of the Judicial Scrivener Law in which consultation practice was newly specified, an item concerning practicing law by acting as an agent in conciliations, settlements and contracts related to practice under Article 3 and other legal matters short of lawsuits is added." Similar provisions would be inserted in relation to certified tax accountants, social insurance and labor affairs consultants, real estate appraisers, real estate surveyors and so on. 2. The Legal Practice of Related Companies In order for the Japanese economy to survive and be revitalized, a proviso should be added to Article 72, exempting cases where related companies handle legal matters from its operation. I believe Article 72 should be revised in accordance with the following wording drawn from the above proposals. "Persons who are not attorneys may not conduct legal actions for the purpose of reward. However, this does not apply in cases where the legal matters of related companies are handled or where this or another law contains express provisions." |
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| 2. | Reform of Article 30(3) of the Attorney Law is the Key to the Recovery of Japan's Economy | ||||
| Who was it that formed the center of Japan's postwar recovery and made that recovery a reality? It was not attorneys. An examination of the elements making up Japan's past and present GDP reveals the extent of added value from attorneys' remuneration included in the figures. Whilst these days we are burdened with recession, the businesses and capitalists accused of mala fides by attorneys made significant efforts, as indeed did the community at large. There is no reason to doubt that to begin with, business and capitalists (Max Weber's The Spirit of Capitalism) brought about today's prosperity, since the Meiji Restoration in Japan and since the 18th century in other countries. When attorneys rationalize themselves they speak of 'basic human rights and social justice' as the basis for everything. However, it is business that exercises social responsibility, practicing corporate governance, constantly emphasizing compliance. This is due to the fact that, without social responsibility, businesses would be unsustainable as going concerns. It is business that is putting 'basic human rights and social justice' into practice. These concepts do not exist solely in the courtroom. They are needed most of all outside the courtroom, especially in the context of business activity. This is comparable to medicine being present not only where treatment is given, but rather having its truest expression in preventative medicine. In this way, although business nurtured Japan's present prosperity and culture, Article 30(3) of the Attorney Law has prohibited attorneys participating in this activity. When a person becomes an attorney their activities are suddenly restrained. Fundamentally speaking, activities outside the courtroom are not possible without the permission of the Bar Association. Furthermore, membership of the Bar Association is compulsory; if one does not join, one cannot use the title of attorney nor, of course, can one practice as an attorney. Doctors may practice as physicians without joining the Medical Association so long as they are registered with the Ministry of Health, Labor and Welfare. The decision as to whether or not to join is a matter for the individual. This is how it should be for attorneys as well. Why is it that attorneys do not have the same freedom as doctors? It is said that the reason for compulsory membership is that 'if it were voluntary, most members would leave and there would be no new members'. Another reason given for compulsory membership is 'the governance of attorneys, to supervise any attorneys who may behave improperly.' It's questionable whether the community believes that attorneys, who have excelled academically, studied law and are viewed as models by the community, are unable to control themselves unless supervised by others. If this is the case it is regrettable and I myself do not wish to believe such a thing. Turning to my own situation, I am an attorney who, some years ago, in order to return to the presidency of my company, applied to the Tokyo Bar Association for permission to carry on a business. However, one after another rules having no connection to Article 30(3) of the Attorney Law or the Bar Associations regulations based on that provision were thrust at me and I eventually gave up. I most likely would have won if I had filed an administrative lawsuit, however I did not feel the problem was of sufficient gravity to justify suing my friends and I withdrew my application. Even though I am working in the legal field, information from the world of attorneys does not flow to me. Article 30 excludes persons in my position. The current Bar Association itself cuts attorneys off from the question that is of most concern to the community, of how to bring about 'basic human rights and social justice' in the business world. The current reforms seek to fully understand that attorneys are actually most needed in respect of the activities of entities such as business, schools, local governments, NPOs and NGOs and to endeavor to not exclude the law-abiding activities of attorneys active in these entities. I consider that the Bar Association membership should be voluntary. Strict limitations on activities as exist presently should be applied only to those members who desire such regulations. In order to guarantee freedom of thought and occupation, the regulations should be improved across the board. My statement in relation to the reform of Article 30 of the Attorney Law follows. Article 30(3): Reform Proposal 1. Complete liberalization of attorneys' areas of business activity on the basis that the notification system is simply unnecessary.
In accordance with the reasons given in [1] and [2] above the notification system should not be used when Article 30(3) relating to attorneys' business activities is revised and the freedom of activity of each attorney should be recognized. 2. Abolition of compulsory committee service. When an attorney is registered with the Bar Association service on Bar Association committees becomes compulsory. This committee service is for the purpose of 'promoting the public good' and is usually conducted at the Bar Association building from 6 p.m. at least once a week. The practice of an attorney who is a director of his firm and is tied up from 6 p.m. as often as once a week will suffer. It is also true that salaried attorneys who cannot work after 6 p. m. as often as once a week cannot attain maturity in that role. This kind of measure is equivalent to saying that 'attorneys should only participate in the business world part-time, they shouldn't get too involved'. 3. The above proposal comes from my strong desire that law reform be carried out that allows attorneys to perform duties securing legal justice and human rights across extensive fields, not only in the courtroom. I have no other intentions in relation to individual attorneys or the Bar Association in connection with my own practicing license. □ The title of this article is drawn from Fukuzawa Yukichi's autobiography, Monbatsu seido wa oya no kataki de gozaru [The Lineage System: Public Enemy #1]. |
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