Global Investigations Review - The law and practice of international investigations

Privilege 2016

Last verified on Tuesday 7th February 2017

Japan

Kengo Nishigaki and Yoshiaki Muto
Baker McKenzie

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 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.

  3. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  4. 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.

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. No.

  7. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  8. 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.

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. 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.

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. 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.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. Please see question 5.

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. N/A There is no concept of "privilege" in Japanese law. 

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. In-house lawyers will be treated in the same way as external lawyers if they are registered attorneys-at-law (bengoshi or gaikokuhojimubengoshi).

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20.  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. 

  21. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  22. No.

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. 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.

  25. 13.Is there an analogous privilege extended to non-lawyer professionals?
  26. No.

  27. 14.Does the privilege apply to communications with potential clients?
  28. Yes.

    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.

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. 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.

  31. 16.Can the privilege be waived? Who may waive it?
  32. 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:

    • Article 134 of the Penal Code allows disclosure of confidential information with justifiable grounds such as disclosure with consents of clients, for the benefits of clients, or as allowed under other laws.
    • Article 23 of the Attorney Act also allows disclosure of confidential information with justifiable grounds according to case law (4 February 1971, Sendai High Court). "Justifiable grounds" are considered to include cases where the client consents to disclosure, where the attorney has to disclose confidential information for his or her own defence, and where confidential information needs to be released for public welfare.
    • Article 220(iv) (c) of Code of Civil Procedure allows an attorney to refuse to disclose documents that include facts prescribed in srticle 197 (1) (ii) which are not released from the duty of secrecy. For example, if the person to whom such secret belongs (such as the client of the attorney) consents to the disclosure of the secret, the attorney cannot refuse to disclose the documents.
  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. Such waiver is not all or nothing. The attorney may select which evidence to disclose or not to disclose. 

  35. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  36. The attorneys representing representing the respective clients may share such confidential information, which is subject to their duties and rights of confidentiality.

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. No. Since registered attorneys are subject to a statutory obligation of confidentiality, there is no need to agree to an additional confidentiality provision.

    Enforcement considerations

  39. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  40. 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:

    • Under article 134 (1) of the Penal Code, unlawful disclosure of another person's confidential information which has come to be known in the course of his or her professional duties by an attorney is prohibited;
    • Under article 23 of the Attorney Act, an attorney is entitled to right and bears duty to maintain confidentiality of any facts which he or she may have learnt in the course of performing his or her duties;
    • Article 197 (1) (ii) of the Code of Civil Procedure entitles an attorney to refuse to testify in cases where he or she is examined with regard to any fact which he or she learnt in the course of his or her duties and which should be kept secret;
    • Article 220 (iv) (c) of Code of Civil Procedure allows an attorney to refuse to disclose documents that include facts prescribed in article 197 (1) (ii) above which are not released from the duty of secrecy;
    • Article 149 of Code of Criminal Procedure entitles an attorney to refuse to give testimony on matters pertaining to the confidential information of others which he or she came to know through his or her duties; and
    • Article 105 of the Code of Criminal Procedure also stipulates that an attorney may refuse the seizure of articles containing the confidential information of others with which he or she has been entrusted and retains or possesses in the course of his or her duties.
  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42.  The statutory obligations and rights of confidentiality are characterised as both a procedural rule and a substantive right (see question 20). 

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. Please see question 20.

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. The rules regarding the statutory obligations and rights of confidentiality uniform nationwide.

  47. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  48. 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.

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. 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.

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. 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.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54.  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).

  55. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  56. 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.

  57. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  58. 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. 

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. 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.

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. No. The statutory obligations and rights described in question 20 all apply to people who used to be attorneys. 

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. 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. 

  65. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  66. 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.

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. No.

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Questions

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  3. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  4. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  5. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  6. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  7. 7.Are there any notable exceptions or caveats to the privilege?
  8. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  9. Protected parties

  10. 9.To what extent does the privilege extend to in-house counsel? 
  11. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  12. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  13. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  14. 13.Is there an analogous privilege extended to non-lawyer professionals?
  15. 14.Does the privilege apply to communications with potential clients?
  16. Ownership of the privilege

  17. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  18. 16.Can the privilege be waived? Who may waive it?
  19. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  20. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  21. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  22. Enforcement considerations

  23. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  24. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  25. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  26. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  27. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  28. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  29. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  30. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  31. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  32. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  33. Termination of the privilege

  34. 30.Does the privilege terminate on the death of either the attorney or the client?
  35. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  36. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  37. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  38. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?