Disciplinary Procedures

What It Tells Us about Practicing Attorneys in Japan

Abstract

Through the system of mandatory registration and disciplinary power, bar associations monitor professional ethics of practicing attorneys in Japan. When attorneys see themselves as legal service providers rather than as the guardians of fundamental rights and freedoms, the concept that disciplinary power is indispensable to the autonomy and independence of the bar and attorneys appears quaint. Nevertheless, local bar associations and the Japanese Federation of Bar Associations (JFBA) are keen to respond to complaints, are willing to settle disputes between clients and attorneys, and have an intricate procedure to deal with requests to discipline their members.

Are the procedures provided by bar associations helpful to people who are dissatisfied with attorneys? Bar associations’ public complaint desks do not resolve conflicts; rather, they give advice to complainants, and many of those complainants appear to be satisfied with having aired their complaints. Bar associations’ ADR also generally appears unsatisfactory for the small number of people who put forward pecuniary claims against attorneys about attorney fees and custodian accounts. Anyone can request the commencement of a two-tiered disciplinary procedure. Indictment committees are established to reject groundless and frivolous allegations, and adjudicating committees are to scrutinize and evaluate evidence. When two indictment committees, those of the local bar association and of the JFBA, reject a request for discipline, the JFBA convenes a review board. In other words, the requesting party is given the opportunity to object to all unfavorable decisions. Are attorneys really disciplined? Definitely yes, when they have committed serious crimes, but usually not in those cases where clients felt they lost their case because the attorney mishandled the issue. Attorneys take requests for disciplinary procedure very seriously as these could result in their disbarment; thus, they are given “notice and hearing” and the complaints are heard by impartial and independent adjudicators. A disciplined attorney can appeal the decision of the bar or the JFBA to the Tōkyō High Court and to the Supreme Court, but the rate of success is very low.

The disciplinary power and procedure do not directly enhance the independence and autonomy of the bar or of attorneys in general, but they appear to strengthen distinct professional ethics among most attorneys.