Last verified on Tuesday 7th February 2017
Yes, but protection is limited to documents and communications kept by registered attorneys-at-law, and such information in the hand of the client is not protected. Japanese lawyers (bengoshi) and foreign lawyers registered as foreign attorneys in Japan (gaikokuhojimubengoshi) are subject to a statutory obligation of confidentiality as professional responsibilities.
Under the Civil and Criminal Procedure Codes, they may refuse to testify as witnesses in relation to knowledge acquired in the course of their professional duties as lawyers. There is no attorney–client communication privilege per se.
Non-legal communications as well as legal communications are protected by the obligations and rights of confidentiality, as long as information of potential clients falls under the confidential information or secret protected by the provisions referred to in question 20.
Documents that include confidential information that attorneys may have learnt in the course of their professional duties are protected by the statutory obligation of confidentiality. Such obligation convers documents that were prepared in anticipation of an attorney-client communication.
Among the statutory obligations and rights described in question 20, three provisions have exceptions:
Article 23 of the Attorney Act exempts attorneys from the obligation of confidentiality in cases where law stipulates otherwise.
Articles 149 and 105 of the Code of Criminal Procedure shall not apply to the cases where the refusal is deemed to be an abuse of rights wholly for the interests of the accused (unless the person who is refusing is the accused), or where there exist other circumstances provided for by the Rules of Court.
No. The underlying evidence is not privileged. The obligations and rights of confidentiality are limited to documents and information in the possession of lawyers, but lawyers are not allowed to hide underlying evidence that they received from their clients. Further, to the extent that the same information or documents are in the possession of the client or any party other than a lawyer, the information or documents will not be subject to any specific protection from disclosure.
Please see question 5.
N/A There is no concept of "privilege" in Japanese law.
In-house lawyers will be treated in the same way as external lawyers if they are registered attorneys-at-law (bengoshi or gaikokuhojimubengoshi).
Yes, the communications between an attorney and a corporate client’s employees are also subject to the duties and rights of confidentiality. But such rights are only for lawyers; therefore, a corporate client’s employees may not refuse to disclose such information.
Yes. The statutory obligations of confidentiality only apply to bengoshi (a lawyer qualified in Japan and Gaikokuhojimubengoshi (a foreign lawyer registered in Japan). A foreign lawyer not registered in Japan is not qualified to have the duties and rights of confidentiality.
Generally, as long as information of potential clients falls under the confidential information or secret protected by the provisions referred to in question, potential clients' information is also protected.
Only registered attorneys-at-law (bengoshi or gaikokuhojimubengoshi) has the statutory obligations and rights of confidentiality described in question 1. On the other hand the client does not have such rights.
Articles 149 and 105 of the Code of Criminal Procedure (the right to refuse to provide evidence or testify at court) shall not apply to the cases where the person in question has given consent. Thus, the client may waive the right of confidentiality in such situation.
Moreover, attorney's right to refuse thereunder may be waived by the attorney. However, if such disclosure is made against the client’s instruction, this could be considered unlawful disclosure of confidential information prohibited by article 134(1) of the Penal Code.
On the other hand, the attorney may be exempted from his or her statutory obligation of confidentiality in the following situations:
Such waiver is not all or nothing. The attorney may select which evidence to disclose or not to disclose.
The attorneys representing representing the respective clients may share such confidential information, which is subject to their duties and rights of confidentiality.
No. Since registered attorneys are subject to a statutory obligation of confidentiality, there is no need to agree to an additional confidentiality provision.
The duties and rights of confidentialities are prescribed in the Penal Code, the Attorney Act, the Code of Civil Procedure, and the Code of Criminal Procedure as follows:
The statutory obligations and rights of confidentiality are characterised as both a procedural rule and a substantive right (see question 20).
Please see question 20.
The rules regarding the statutory obligations and rights of confidentiality uniform nationwide.
The Basic Rules on the Duties of Practicing Attorneys (the Rules) established by the Japan Federation of Bar Associations (JFBA), a nationwide professional organisation of attorneys in Japan has provisions regarding the maintenance of confidentiality.
Article 23 of the Rules prohibits disclosure or use of confidential information of a client that is obtained in the course of an attorney's practice without justification.
Article 56 of the Rules prohibits an attorney who belongs to a joint office (an office operated by two or more attorneys jointly other than by way of a legal profession corporation) ("member attorney") from divulging or using confidential information regarding the clients of other member attorneys obtained through the performance of his or her duties without justifiable cause.
A breach of the Rules could result in disciplinary measures taken by the bar association to which the attorney belongs including admonition, suspension for not more than two years, order to expulsion from the bar association to which he or she belongs, or disbarment under articles 56 and 57 of the Attorney Act.
If an attorney discloses without justifiable grounds another person's confidential information which has come to be known in the course of his or her profession, imprisonment with work for not more than six months or a fine of not more than 100,000 yen shall be imposed under article 134 of the Penal Code.
As stated above, attorneys can exercise their right to refuse to testify at the court confidential information that they may have learnt in the course of their duties.
When an attorney exercises his or her right stipulated in article 197 (1) (ii) of the Code of Civil Procedure, he or she must prove the reasons for his or her refusal to testify (article 198 of the Code of Civil Procedure).
Criminal law-search warrants
As stated above, under article 105 of the Code of Criminal Procedure, an attorney may refuse the seizure of articles containing the confidential information of others which he or she has been entrusted with and retains or possesses in the course of his or her duties.
However, this right is only applicable to attorneys, not the client.
Civil law-document production order
The Japanese civil procedure system does not have discovery, but the party may request the court to order the other party to disclose certain documents in certain limited cases under article 220 of the Code of Civil Procedure (ie, document production order). As an exception, article 220 (iv) (c) of Code of Civil Procedure allows the holder of the document to refuse to disclose documents that are subject to the rights and obligations of confidentiality of attorneys. In this case, whoever holds the evidence may refuse to disclose it.
When the party wants to exercise the rights and obligations of confidentiality applicable to attorneys at court, it is a matter of procedure. As the Japanese law governs regarding procedural matters, the validity of choice-of-law provisions do not apply to attorney–client privilege issues.
As the main characteristic of the rights and obligations of confidentiality is a professional responsibility for the attorney, they will cease on the death of the attorney, but will survive on the death of the client.
No. The statutory obligations and rights described in question 20 all apply to people who used to be attorneys.
As described in question 16, in the cases where it is necessary to disclose confidential information for public welfare, the attorney may disclose confidential information of the client. Such cases include when the client's intent to commit a crime is clear, his or her act of committing the crime is imminent, outcomes of such crime are extremely serious, and therefore the disclosure of confidential information is inevitable.
No. As the main characteristic of the rights and obligations of confidentiality is a professional responsibility, the rights and obligations still remain after an inadvertent disclosure. However, f the attorney makes an inadvertent disclosure and if his or her act falls under any of the provisions that stipulate obligations of confidentiality referred to in question 20, he or she may be punished according to such provisions or be liable. Additionally, he or she may be subject to disciplinary measures taken by the bar association to which he or she belongs as mentioned in question 24.
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