Definition
The following principles cover legal advice and certain information and documents in relation to providing legal services:
1) Confidentiality (concept of legal professional privilege in Japan)
Confidentiality is a human right and a lawyer’s duty. In order for the lawyer to fulfill their fiduciary duties to their client, the Attorney’s Act (Law No. 205 of 1949, Article 23) guarantees that a lawyer or a former lawyer has the right and responsibility to protect the confidentiality of all information that they may have discovered during the exercise of their duties (‘Confidentiality Obligation’).
If a lawyer discloses client details to others or breaches the confidentiality duty of the lawyer, the lawyer may be prosecuted by the Bar Association under the Code of Attorney Ethics established by the Japan Federation of Bar Associations (JFBA).
2) Rights of Refusal
The corollary to the Confidentiality Duty is the Right of Refusal. Lawyers are entitled to reject court orders requiring the disclosure of client information or the attempt to confidentially seize documents or materials in the hands of the lawyer.
This may not actually be a waiver of confidentiality, even though the customer or individual who has the right to keep such information confidential discloses the confidential information to a third party. Refusal rights of the lawyer may remain in effect if the client or person entitled to keep such information confidential does not wish to allow the disclosure of the information and discloses the information as confidential information and only to a restricted number of persons.
Unlawful leak of sensitive data
The duty of any lawyer or other professional who receives confidential information is not to reveal the confidential information they have come to know during the course of their work. Based on their position and the relationship of trust that they form with their client, this responsibility is placed on them. A breach of this duty is a felony under the Penal Code of Japan (Law No. 45 of 1907) and could result in imprisonment of up to six months or a fine of up to JPY100000000 (Article 134).
Legal professional privilege in the sense of civil litigation
Lawyers are entitled, according to the Civil Procedure Act (Law No. 109 of 1996, Articles 197 and 220.4(iii)), to reject court orders that would compel the disclosure of client information under the disclosure process of civil litigation. However, if the client or the person who has the right to keep such information confidential waives confidentiality, the lawyer can no longer claim the right.
In addition, a lawyer can refuse to testify on matters protected by the Confidentiality Obligation of the lawyer, including a licensed international qualified lawyer. Under the Civil Procedure Act, those rights are assured (Article 197.1.2). It should be noted that while these rights may be claimed by the lawyer, the lawyer may no longer claim these rights if the client decide to waive the right.
Legal professional privilege in the sense of judicial inquiries
Under the Criminal Procedure Act an attorney may refuse to enclose any document or information unless:
Consent for the disclosure has been provided by the individual in question, or denial is considered to be a violation of rights entirely for the benefit of the defendant (unless the information is about the accused). For example, if the information no longer needs to be protected because it has been revealed to other parties, a failure to reveal the confidential information would be a violation of rights.
In addition, a lawyer can refuse to testify on matters protected by the Confidentiality Obligation of the lawyer, including a licensed international qualified lawyer. Under the Criminal Procedure Act, those rights are guaranteed (Law No. 131 of 1948, Article 149). It should be noted that while these rights may be claimed by the lawyer, the lawyer may no longer claim these rights if the client or the individual who has the right to keep such information confidential waives confidentiality. The counsel is therefore not entitled to refuse to reveal sensitive details in criminal trials if the refusal is considered to be a violation of rights solely in the interests of the accused (unless the information is about the accused).
Legal professional privilege during antitrust / competition inquiries
Lawyers and their clients do not enjoy privilege in sense of competition law investigations and may not refuse enclosing requested documents. This is because competition law investigations are categorized as an administrative / governmental activity under Japanese law, not as a criminal investigation. Under the new laws, less guarantees are given to lawyers in such investigations.
Legal professional right scope
What does legal professional immunity protect?
The nature of the duty of confidentiality is not clearly delineated, but is limited to sensitive details that the lawyer has come to know in the course of his work with clients. The duty is not only limited to confidential information that the client trusts would not be revealed, but includes any information that can be required to be kept in trust by a rational individual. It should also be remembered that the job remains until a case has been concluded or whether a case has been moved to another lawyer, irrespective of whether the client has compensated the lawyer for the work of the lawyer. In addition, if the information is learned through a lawyer’s representation of a client, the confidentiality requirement may extend beyond the client’s coverage of information about third parties.
Japanese law does not allow for the timing of the production of protected records, as long as the documents contain sensitive details of other individuals entrusted to the lawyer and kept or possessed by them in the course of their duties.
As long as the records contain the sensitive information of other persons that the lawyer has been entrusted with and maintains or possesses in the course of their duties, there is no restriction on the types of documents covered.
Are legal professional privilege-protected interactions with in-house counsel?
In-house lawyers have similar privileges and responsibilities to private lawyers in Japan with regard to confidential information. In-house attorneys have the same responsibilities and the same freedom not to share sensitive details about their clients (provided the in-house counsel is a licensed lawyer). In-house attorneys are required to conduct their work as openly and independently as possible within their firms or associations under the Code of Attorney’s Ethics (Article 50). If in-house counsel comes to know data about any illegal activity, they should take appropriate action inside the corporation or agency, i.e. report the issue to their superior. However, under the Code, the in-house attorney is not allowed to reveal sensitive information outside their company or association (Article 51).
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
The confidentiality duty extends to a competent foreign lawyer registered under the Foreign Lawyers Act as a Foreign Lawyer . Similar to the treatment of Japanese lawyers, if a competent foreign lawyer breaches the obligation of confidentiality, the JFBA can discharge them (Articles 51 and 52) and the breach is subject to imprisonment of up to six months or a fine of up to JP ¥100 000 000 (Article 67).
When legal professional privilege is waived?
In the following circumstances, the Confidentiality Duty can cease to exist:
– If the client requires the lawyer to reveal confidential details,
– If the customer specifically intends to commit a crime and the probability of the customer carrying out this intention is high or high
– If the lawyer is charged with the subject of the information and disclosure, it is important to shield the lawyer from lawsuits or damages.
In Japan, the confidentiality duty refers to information in the possession of the lawyer, not necessarily to information produced by the lawyer, but no longer in the possession of the lawyer. Accordingly, if the documents produced by a lawyer are owned by a third party, including the client, the documents are not subject to the duty of confidentiality.
In civil cases, criminal inquiries, and antitrust and competition law investigations, what are the differences in the spectrum of legal professional privilege?
In civil litigation and criminal prosecutions, though refusal rights are secured, no special protection is guaranteed in antitrust and competition law investigations. Also, in criminal cases, even though the person in question has not waived confidentiality, if the refusal is deemed to be a violation of rights solely in the interests of the accused (unless the person is the accused), the prosecutor does not exercise the right of refusal.