4
The Present State of Japanese Practicing Attorneys: On the Way to Full Professionalization?

KAHEI ROKUMOTO

This chapter attempts to present an overall picture of Japanese lawyers in private practice and the legal services they deliver, drawing on a recent national survey (table 4.1).^[1] I shall discuss some of the most salient features of the Japanese bar and its business, primarily on the basis of the survey, focusing on (1) the size of the bar, (2) the recruitment of its members, (3) the forms of their practice, (4) the kind of work they do and the clients they serve, and (5) their income. However, in order to interpret such an overall picture correctly, we must put it in an appropriate framework. So I shall start with a brief summary of the historical and institutional background of the profession.

HISTORICAL AND INSTITUTIONAL BACKGROUND

Before 1868 there was no distinct occupational group with special expertise in law.^[2] Within the government of the central Tokugawa Shogunate, as well as those of the subordinate feudal domains, the judicial function constituted only one of the tasks of generalist administrators. Professional representation before the court was not recognized, although certain innkeepers and their clerks (called kujishi ) were authorized to offer their knowledge of procedure and of the location of various offices to guests coming to Edo for litigation (Henderson, 1965: 167-169).

The Meiji Government created the entire modem, centralized legal system on the model of the imperial German legal system. This was done during the decades following the Imperial Restoration, through promulgation of a constitution and comprehensive substantive and procedural codes and the establishment of a system of courts distributed throughout the country. In the course of the gradual differentiation of the judicial branch within the governmental structure, the legal profession also

emerged. Because it, too, was created by the government, it lacks autonomous authority rooted in tradition. Moreover, in the process of establishing the legal profession, emphasis naturally was placed on securing competent judges and prosecutors—career governmental officers charged with administering the imported systems of laws and courts—to the neglect of private attorneys.

In 1872 judges and prosecutors were recognized as legal officers distinct from ordinary government officials.^[3] A certain amount of legal education (based mainly on the European law) was made a prerequisite for their appointment, and a government school was established for the purpose, which later was incorporated into an Imperial University. Beginning in 1890, the positions of both judges and prosecutors were firmly established through the formal examination system, the three-year apprenticeship, and the guarantee of tenure. Private attorneys, however, systematically were treated as the inferiors of judges and prosecutors, although their position gradually improved during the prewar period. Legal representation was recognized in civil cases in 1872 and in criminal cases in 1890, and the professionals who performed those functions officially were recognized in 1876. Their qualifications remained vague until 1893, when the first Practicing Attorneys Act introduced the present title of "bengoshi,"^[4] together with a formal qualification based on an examination of legal knowledge. This examination, however, was separate from, and less demanding than, that for judges and prosecutors, and law graduates of Imperial Universities were exempt even from it until 1923. Apprenticeship was not required until 1936 (apprentices were paid by the state). Throughout the prewar period, private attorneys were under the control of the Minister of Justice and the prosecutors subordinate to him, and the activities of their organizations were closely supervised.

The general social and economic patterns determined by the precipitous modernization under the leadership of an authoritarian government also did not constitute a favorable environment for the development of a new profession. The traditional aversion toward "law" still prevailed among the population and was reinforced by the familistic nature of social organizations and governmental indoctrination of Confucian ethics emphasizing "harmony." The rise and growth of modern industry in an agrarian society that had been closed to the outer world for 300 years is attributable less to the workings of an impartial law protecting free entrepreneurial activities and more to active encouragement and protection by the government. Consequently, lawyers' services were not an indispensable element in the making of modern Japanese society and economy. The inquisitorial character of court procedures also narrowed the lawyers' role in civil matters. These circumstances led practicing attorneys to develop a characteristic professional self-image stressing their po-

litical role in representing criminal defendants oppressed by the state. They even called themselves the "opposition branch" of the legal profession, in contrast to the judges and prosecutors, who were labeled the "governmental branch."

It is only through the Practicing Attorneys Act of 1949 that Japanese practicing attorneys acquired formal equality with judges and prosecutors, in the sense that all are subjected to the same state legal examination and two-year apprenticeship and that the former were accorded full autonomy in governing their own affairs, including the matters of licensure and discipline.^[5] Court procedures for both civil and criminal cases also have undergone substantial reforms to incorporate Anglo-American adversary principles, thus enhancing the role and status of attorneys in the courtroom.

Today, aspirants to the legal profession undergo a unitary state Legal Examination and a common two-year course of practical training at the Institute of Legal Training and Research (ILTR).^[6] They decide whether to become judges, prosecutors, or practicing attorneys when they leave this institute.^[7] Some efforts were made after the war to unify the legal profession, recruiting judges from among experienced private practitioners, but this effort failed, although a proportion of Supreme Court justices customarily are appointed from among eminent private attorneys.^[8] Thus, only a few of those who choose private practice at the time of leaving the ILTR will enter the public sector, although a substantial number of judges and prosecutors resign to become private attorneys even before they reach retirement age.^[9]

Within these and other new institutional frameworks, created as part of postwar democratization, the younger lawyers trained in the ILTR grew in number and the general quality and prestige of Japanese private attorneys significantly improved (table 4.2). Against the background of the postwar economic expansion, the importance of lawyers in civil matters gradually was recognized, and the public now accepts them as a major element in the administration of law and justice. Nevertheless, the status of practicing attorneys still reflects the historical handicaps described above. They rank somewhat lower than judges and prosecutors, and, in face-to-face interaction, the latter display their traditional sense of superiority, which is greatly resented by the former.

In analyzing the legal profession, we also have to note some of the distinctive features of the contemporary Japanese legal system. The judicial system resembles that of Germany, with each of the forty-seven prefectures having a district court, the principal court of first instance with general jurisdiction. Above the district courts there are eight high courts and one Supreme Court. Below, there are about 600 summary courts of limited jurisdiction (up to 900,000 yen [>] in civil matters; about $4,500).

Unlike the German model, however, we also have separate family courts in each prefecture.

Mediation is an integral part of the judicial system. Lay mediators attempt to settle civil cases less formally, less expensively, and more quickly by assisting parties in reaching an agreement.^[10] In family matters, a regular lawsuit can be filed only after mediation in the family court has failed. In other civil matters, the plaintiff can choose between mediation and adjudication regardless of the amount in controversy.

Legal representation is not compulsory, except in certain kinds of criminal cases (Code of Criminal Procedure, art. 290).^[11] In contrast, a non-lawyer can represent a party only in summary courts (Code of Civil Procedure, art. 79). Both lawyers and lay representatives are allowed to participate in mediation.^[12] There is no localization of practicing attorneys as in Germany, so that lawyers can represent their clients before any Japanese court. There also is no legal regulation of lawyers' fees. Each association of practicing attorneys establishes a standard fee schedule, in principle proportioned to the amount in dispute, but this has no binding force and is not strictly followed in practice.

SIZE

It is well known that both the Japanese legal profession as a whole and the practicing bar in particular are very small (see table 4.3). In 1979 there were 1,940 posts for regular judges and assistant judges,^[13] 791 posts for summary court judges holding lower qualifications,^[14] and 2,092 posts for regular and assistant prosecutors. As of January 1980 there were 11,466 registered practicing attorneys.^[15] The ratio of practicing attorneys to the national population (about 116 million) is approximately one to 10,000 persons, only a sixth as high as in England and West Germany.^[16]

The distribution of lawyers within the country is far from even. In 1980, 5,361 of the 11,466 lawyers (or 46.8 percent) had their offices in Tokyo and another 2,044 (17.8 percent) were practicing in Osaka or Aichi. Thus, almost two-thirds of all private attorneys are concentrated in the three largest industrial centers. Five other prefectures endowed with a high court contained 918 private attorneys (8.0 percent), and the remaining 39 prefectures with only a district court had a total of 3,143 lawyers (or 27.4 percent). The number of PAs per 10,000 people in each of the four survey areas is as follows: A = 4.58, B = 1.44, C = 0.64, D = 0.43. Therefore, in the peripheral areas there is an extreme shortage of practicing attorneys. Within these peripheral prefectures, lawyers' offices are concentrated in the city where the prefectural government and the district

court are located, so that the nationwide maldistribution of lawyers is reproduced at the prefectural level.

These gaps are partly filled by the PAs who travel from urban centers to work on particular cases pending in local courts and by other categories of law-related occupations, each of which has its own examination, registration, and legally prescribed sphere of activities.^[17] These include tax accountants (40,000), patent attorneys (2,500), judical scriveners (approximately 14,500 in 1980), and administrative scriveners (65,000).

Tax accountants are allowed to draft documents, give advice concerning tax matters, and represent clients in the administrative complaint procedures against tax authorities; however, the number of such cases still is small in Japan. Patent attorneys may give legal opinions about patents and similar matters and represent clients in complaint or dispute procedures concerning those matters before the competent authorities (the Patent Office and the Minister of International Trade and Industry) and, in certain matters, before the regular courts (Patent Attorneys Act, arts. 1, 9, 9-2). Patent, copyright, and taxation constitute highly specialized fields, in which only a very few lawyers could work confidently without the collaboration of a patent attorney or a tax accountant. Not surprisingly, the distribution of patent lawyers and tax accountants resembles that of practicing attorneys.

The activities of judicial scriveners are more general and somewhat overlap those of PAs.^[18] The law authorizes them "to represent the client in the procedure concerning registration or deposit" and "to draw up documents to be submitted to a court, a prosecutor's office, or a bureau of judicial affairs," among other functions (Legal Scriveners Act, art. 2).^[19] The registration of real estate transactions and the creation or transformation of commercial corporations makes up the bulk of the work of legal scriveners. The former includes the registration of many changes in the rights and duties concerning land and buildings, including transfer and mortgage. In Japan, these transactions normally are effected with the assistance of a real estate agent and a judicial scrivener and without the intervention of a PA. Furthermore, the judicial scrivener lawfully can prepare briefs and all the other documents submitted by the litigant in the course of a lawsuit. Judicial precedent has recognized that, in drafting such documents, the judicial scrivener must exercise legal judgment. It is almost impossible to separate the legal advice necessary to draft a document from the other advice a judicial scrivener may offer his client. Consequently, it is widely admitted that in most cases where the litigant is unrepresented a judicial scrivener is operating behind the scenes, not only drafting documents but also advising the principal on how to conduct the litigation. They also frequently advise citizens in matters not related to the legiti-

mate work of drafting a document and occasionally are prosecuted for violating the Practicing Attorneys Act.^[20] Legal scriveners are much more evenly distributed geographically, partly compensating for the maldistri-bution of private attorneys.^[21]

The work of administrative scriveners concerns the documents submitted to an administrative office (e.g., the application for a driver's license). This does not directly involve a legal transaction or dispute, however, and complaints against an administrative agency still are very rare in Japan. Therefore, administrative scriveners seldom are viewed as lawyer substitutes.

RECRUITMENT

The principal mode of recruitment to the legal profession is through the state Legal Examination, followed by two years of practical training at the Institute of Legal Training and Research. About 70 percent of attorneys practicing today are those younger, more competent lawyers who entered in this fashion. Within a few decades the others, who qualified under the older system, will completely disappear from the Japanese bar.

Practicing attorneys qualify rather late in life. Among those presently in practice, about 29 percent obtained their qualification before they were twenty-five, about 47 percent between twenty-five and thirty, and 20 percent after thirty. The average age of those who passed the Legal Examination was 27.69 years in 1965, 26.60 in 1970, 26.75 in 1975, and 28.07 in 1980 (Nihon Houritsuka Kyoukai, 1982: 139). (We have to add two more years in order to obtain the average age of qualification for each class.) This undoubtedly is due to the difficulty of the Legal Examination, which is notorious and often severely criticized by law professors. Each year, only 500 out of 29,000 candidates (or 1.7 percent) pass (see table 4.4). Since the normal age of graduation from the university is between twenty-two and twenty-four, those who pass have spent an average of three to five years preparing for the examination.^[22] Many candidates attend cram schools, even while they are university students. There is no limit on the age of the candidates or the number of repetitions.

Although lawyers need not have a law degree or even a university degree, we found that only 1.6 percent of practicing attorneys were not university graduates and that 95.3 percent of university graduates had studied law.

Not all graduates aspire to enter the legal profession. Legal education is not offered in a professional school at the graduate level but is a two-year undergraduate course in a law faculty (following two years of general university education) and includes a wide range of subjects, such as political

science and economics, as well as law.^[23] In fact, those who pass the Legal Examination and go on to the ILTR constitute a small minority of law students (see table 4.5).^[24] Others enter the civil service or business. The education in a law faculty, especially at one of the former Imperial Universities (which were founded mainly to recruit and educate civil servants), is considered the entrée to high positions in politics, government, and business. It cannot be said that the best law students become lawyers, either; for one thing, in order to pass the Legal Examination, one must devote two or three years almost exclusively to preparation.

Many law students enter large business corporations and become the "lawpersons" in the firm—employees who have acquired the basic knowledge of and skill in law and legal reasoning in the university and, without possessing the certificate of a lawyer, specialize in handling the legal matters of the firm. These people, of course, represent still another category of competitors with practicing attorneys.^[25]

Our study of the social background of practicing attorneys revealed that 13.6 percent of their fathers were professionals, 12.6 percent were managers, 19.0 percent were clerical or technical employees, 28.1 percent were proprietors not in agriculture, 18.9 percent were farmers, 4.7 percent were workers, and 4.2 percent were in other categories. Overrepresentation of the professional and managerial classes on one hand and under-representation of workers and farmers on the other hand is clear. In order to ascertain accurately the implication of these data, however, we would need a detailed analysis of the social structure of Japanese society and its change over the past 100 years, particularly because it has undergone a fundamental transformation from a predominantly agrarian, static society into a highly industrialized, mobile society within a very short time (Dore, 1967).

FORMS OF PRACTICE

All Japanese practicing attorneys have or belong to one (and only one) law office, but their status varies with their relation to that office. Some lawyers are employed by another lawyer or lawyers (principals). Most employed lawyers earn a fixed salary (with annual raises) for the work they do for their principal,^[26] and many also receive a percentage of the fee in cases they handle together with their employers or on their own (see table 4.6). A small number work entirely on commission. Most employed lawyers may take their own cases and work for their own clients using the office facilities and clerks of their employers. In this way, they acquire the necessary work experience to launch their own practices. These employed lawyers sometimes are called "Isoro -attorneys" ("Isoro"

means one who hangs on a master and performs odd tasks). This term is a remnant from the time when practicing attorneys started their careers as personal apprentices of a senior lawyer. Even today, the relationship between principals and their young employees sometimes is colored by the paternalistic attitudes of the former and thus is not altogether free from friction.

Principal lawyers fall into two categories: those who are the only principal within their law office and those who share their office with other principals. The first group divides further into solo practitioners and sole principals who employ other lawyers. We call the latter "masters," in complementarity to the term "Isoro-attorneys." The second group also contains two subdivisions. One is the "office-sharers," who share only the rented office space, telephones, law books, and other equipment, as well as clerks. Sometimes they share employee lawyers, as well. Insofar as the management of the law practice is concerned, however, the members of a Büro-Gemeinschaft, as it would be called in Germany, are completely independent of each other. One has personal clients, works independently without consulting office companions, and pays a share of the office expenses out of separate fees. The other subdivision includes those who form a partnership with other lawyers and share not only the office expenses but also the clients, the work, and the fees, as well as responsibility for running the office. Many partnerships also have employee lawyers.

Thus, we can classify practicing attorneys into the following five categories (with the adjusted proportion of the total sample shown in parentheses): (1) "Isoro-attorneys," that is, employed lawyers (18.0 percent); (2) office-sharers (14.0 percent); (3) solo practitioners (50.0 percent); (4) "masters," that is, solo principals with employed lawyers (9.0 percent); and (5) partners (9.0 percent). The distribution of practicing attorneys across these categories by areas and age is shown in tables 4.7a, 4.7b, and 4.7c. On the basis of these tables, we can make the following observations.

Generally speaking, Japanese practicing attorneys start their careers as employed lawyers.^[27] As they grow older, they try to practice independently, but some—especially in Tokyo where rents are higher—find it necessary to share an office in order to accumulate more capital before opening their own practices. After they have achieved independence, if their business prospers and the volume of their work both warrants and demands it, they hire younger lawyers to perform part of the work load. Thus, although Japanese attorneys may associate with others in various ways, their ultimate goal is to be on their own, "the master of a castle, however small it may be."

Partners, most of whom are in their thirties and forties, represent only a small minority among Japanese lawyers. They do not follow the tradi-

tional career pattern just described. In fact, partnerships are an innovation. According to our data, there presently are three types of partnership (apart from husband and wife or father and son). The first type comprises law firms specializing in international business transactions and adopting the work style and office organization of the larger American firms. These partners generally have had some legal education in the United States. Indeed, some of these firms were founded by American lawyers. Some have many patent attorneys among their partners. The employer and employee lawyers often are referred to by the English terms "partner" and "associate." Most firms send their young associates to Western countries (not always the United States) for legal studies and training. These firms are located almost exclusively in Tokyo and represent the largest and most modem law offices in Japan. In 1980 they contained eight to fifteen practicing attorneys, and some also had patent attorneys.

The second type of partnership consists of the law firms affiliated with left-wing political parties. They mainly represent labor unions in industrial disputes and defend union members and political leftists in criminal proceedings. In recent years, these lawyers have played an important role in cases concerning environmental pollution. Such cases often require cooperation among a number of committed lawyers sharing a common ideology. Specialization in union cases explains how these law firms can exist, even in the areas where the absolute number of practicing attorneys is very small.

The third type is made up of partnerships oriented to domestic business clients. Such partnerships are increasing in Osaka and Nagoya, and some make a conscious effort both to rationalize their practices through constant mutual consultation within the firm and to develop forms of legal services better adapted to the everyday needs of all Japanese business corporations, and not just the very large ones. These law firms generally are smaller than the first type and sometimes are formed on the basis of a former relationship between a master and an Isoro-attorney.

Most partnerships are fairly small (see table 4.8). One of our respondents belonged to a firm with 20 or more lawyers (partners and associates included), but this is a rare exception. The great majority of partnerships consist of two to five lawyers. This also is true of the offices of office-sharers, although here the average size is slightly larger (see table 4.9).

Table 4.10 shows the distribution of lawyers by area in terms of the number of lawyers in their offices, regardless of whether these lawyers are employed, office-sharers, masters, or partners. Half of Japanese lawyers are solo practitioners, 20 percent belong to a two-lawyer office, and another 20 percent belong to an office with three to six lawyers. In terms of management, however, office-sharers and masters both practice on their

own account. In this sense, it can be said that 73 percent of all attorneys and 89 percent of all principal attorneys practice independently.

Law offices in Japan are small in another respect, too. The average number of derks per lawyer is little more than one (see table 4.11). The occupation of law office clerk is not well institutionalized, either. There is no organized training or certificate system, as is the case in England and West Germany (Rechtsanwalt und Notar Gehilfe). Correspondingly, the work done by the clerks tends to be limited to secretarial and bookkeeping functions. Only a few regularly execute simple, patterned legal tasks. Practically no clerk is entrusted with work requiring independent legal judgment. Most are young women, who leave when they marry, or young men preparing for the Legal Examination, although a substantial minority of clerks are experienced men and women, who are indispensable to their employers. The average numbers of clerks per law office, by gender, education, experience, and area, are shown in table 4.12.

WORK AND CLIENTS

In order to ascertain the volume and content of the work of attorneys, we asked each respondent to list all open cases^[28] and to classify them in terms of various criteria.

Table 4.13 shows that criminal matters account for 5 to 10 percent of the attorney's caseload, a proportion that increases as we go from area A toward area D, reflecting the lawyer shortage in peripheral areas (see also tables 4.14 and 4.15). The average number of cases open at the time of the survey (between thirty-two and forty-eight) is rather small; indeed, the national average of pending civil cases is only thirty-seven (see table 4.16). The volume is dramatically higher among the lawyers in their forties and fifties and also higher in peripheral areas, for the reason given above. Civil cases are heavily concentrated among the small number of masters and partners (see table 4.13). Only a few lawyers handle over 100 cases, most of whom are located in peripheral areas, and only 7.8 percent of all lawyers handle more than 80 cases (see table 4.15).^[29]

There are four kinds of civil matters: (1) noncontentious (or preventive) cases; (2) disputes handled without the intervention of a court or other public agency (at least at the time of our inquiry); (3) cases brought before a public agency, such as an administrative tribunal; and (4) cases brought before a regular court for either mediation or adjudication. Formal litigation constitutes by far the greatest proportion of the civil work of Japanese practicing attorneys (see table 4.16). Noncontentious matters and out-of-court settlements represent only 15 to 30 percent of all civil cases

(about 25 percent of the total work load of attorneys). Dispute settlement before administrative tribunals still is almost negligible. Only Tokyo differs significantly from this pattern because law firm partners specializing in international trade handle a larger proportion of noncontentious matters (see table 4.17).

When current civil cases are classified by subject matter (see table 4.18), the largest categories are debt collection (20 to 23 percent) and payment of debt (7 to 9 percent)—the gap between the two must be due to default cases. Closely related to these are executions of judgments (5 to 8 percent) and bankruptcy (2 to 3 percent). Together these categories account for about 35 to 40 percent. Next in importance are disputes involving rented houses or land (7 to 11 percent) and other cases involving real estate (9 to 15 percent); inheritance (4 to 5 percent) also primarily concerns houses and land. If we combine the three real estate categories, we get another 20 to 30 percent. A third major grouping consists of automobile accidents (4 to 7 percent), medical malpractice (1 percent), and other damages (6 to 7 percent), aggregating another 10 to 15 percent. Fourth place is taken by domestic matters (4 to 5 percent).^[30] Those problems that arise in the everyday lives of most people—employment, environmental matters, consumer complaints, and grievances against the government—are not an important source of business for Japanese lawyers. Nor are those bodies of law that affect the daily affairs of larger business enterprises, such as company and economic law, patent and copyright law, and international trade law. Thus, Japanese lawyers depend heavily on debt collection and real estate matters, in which resort to court often is unavoidable.

Consistent with this subject matter emphasis, the main clientele of Japanese lawyers is individuals (who own property) and small and medium-sized enterprises, not large business firms (see table 4.19). Large business firms virtually are monopolized by master lawyers and partners in the major industrial centers (see table 4.20). Except for partners in Tokyo firms and masters everywhere, most Japanese lawyers rely heavily on new "one-shot" clients rather than on the return of habitual customers (see table 4.21).

Some lawyers have retainers (mostly oral) with an organization (very rarely an individual) whereby the lawyer offers daily consultation in return for a fixed annual fee. If the client also asks the lawyer to handle litigation, it will pay the lawyer a separate fee, although usually at a reduced rate. The retaining organization is not obligated to send its cases exclusively to its legal advisor, and some larger companies have several legal advisors (see tables 4.22 and 4.23). To create such relationships is one of the central goals of Japanese lawyers. Retainers ensure a regular income, which, although often rather small, at least covers the rent. They

are important sources of work, for the retaining organizations not only give their advisor profitable cases but also refer other clients—and to be the legal advisor of a well-known firm enhances the prestige of a lawyer. Master lawyers have a distinct advantage in getting retainers (see table 4.22).

Very few clients come to the lawyer through public or private counseling bureaus, and only a small number come without any intermediary (see table 4.24). A potential client has to know the lawyer personally or else be able to mobilize a social network that can lead to a lawyer. This established pattern, which is accepted by both lawyers and the general public, undoubtedly limits the access of ordinary people to legal services.^[31]

INCOME

It is difficult to determine the income of practicing attorneys accurately. We asked our respondents to reveal their gross and net income and certain expenses for 1979, as they reported these to the tax authorities (see table 4.25). The average net income of Tokyo Lawyers is ¥7,600,000 (or about $38,000) after deducting expenses of about 60 percent. In Area D, average net income is ¥6,140,000 (or about $30,700), and expenses are 53 percent of gross. These income levels are roughly comparable with those of British solicitors, but there is much greater variability in Japan than in England (see tables 4.26 and 4.27).

The average net income of lawyers peaks earlier in the more rural areas (see table 4.28). This table also can be used to compare the income of lawyers with the salaries of other occupational groups. Data on the income of company directors, independent entrepreneurs, and practicing physicians are not available. However, we do have reliable data on the salaries of employees of nongovernmental organizations (see table 4.29). This gives the impression that practicing attorneys earn much higher incomes than other white-collar employees but a little less than employed physicians.

The salaries of judges increase fairly regularly for each of the first ten years of their careers (as assistant judges) according to a schedule that, in 1980, rose from ¥147,500 to ¥319,600 per month. (Recall that in recent years the average judge has qualified at about age thirty.) In order to obtain a rough estimate of their yearly income, we may assume that they receive an annual bonus of five times their basic monthly salary, for a total of ¥2,510,000 to ¥5,430,000 per annum. Their salaries no longer are determined mechanically after they become full-fledged judges (see table 4.30). If we consider only ordinary full-fledged judges, whose com-

pulsory retirement age is sixty-five (excluding the Chief Judges of District or High Courts and Supreme Court justices), their total yearly income ranges from approximately ¥6,530,000 to ¥14,530,000. It is difficult to draw a definite conclusion from these data, because these averages are not specified by age. Generally speaking, practicing attorneys in their forties and fifties appear to make a little more money than judges, but they do less well in their sixties and seventies, especially when we take into account the pensions judges receive after retirement.

The variation of lawyers' incomes is much greater within the same age group than that of salaries in other occupations, for those employed in organizations receive a similar salary at the same age. The enormous variation in the income of Japanese lawyers according to their status or form of practice is one of the central connotations of the term "free profession" (see table 4.31). The sole principals (masters) who employ one or more other lawyers are by far the richest, although there are very few. Partners in Tokyo, many of whom specialize in international trade, also are among the top profit-makers.

CONCLUSION

Our survey of the present condition of Japanese practicing attorneys reveals that they still play a limited role within the legal order. Their professional activities are largely confined to representation before courts. This partly reflects the traditional predominance of judges in the administration of justice. Noncontentious matters, where practicing attorneys would be the only authoritative representatives of the legal order, generally are not entrusted to them. Outside of court, lawyers also are surrounded by lay competitors. These distinct occupational groups of "quasi-lawyers," each with a legally recognized sphere of competence closely related to law, allegedly often serve as lawyer substitutes for individual citizens. Large business firms, in contrast, have their own "lawpersons," who handle the legal matters arising in the course of their daily business transactions (such as making a contract or resolving a dispute); they use their officially qualified "legal advisers" only when involved in litigation.

Practicing attorneys are not highly professionalized. Their heavy reliance on litigation is reflected in the fact that the bulk of their business involves debt collection or real estate—situations where litigation often is a last resort because the parties either are strangers or have terminated their relationships. These areas of legal practice do not require a very sophisticated level of expertise. The main clients of most lawyers—small and medium-sized business enterprises and propertied individuals—do

not constitute a very stable clientele. There is little specialization in lawyers' work, except for the small minority who deal with patent law, international trade, or labor union matters. The great majority of Japanese practicing attorneys are generalists working, or aspiring to work, on their own, with minimal clerical help. The general style of their work and life closely resembles that of their main clients, small business proprietors.

In many respects the activities of Japanese practicing attorneys, and thus the legal system as well, touch only the surface of the social order. They still have not penetrated deeply into the everyday life of either ordinary citizens or the business world, nor have they managed to institutionalize the specifically legal ways of ordering human affairs.

TABLES

NOTES

[1] In 1980 the Japan Federation of Practicing Attorneys' Associations (see note 5, below) undertook a survey of its members. This was the first systematic effort in Japan to ascertain empirically and statistically the actual state of legal practice. A thirteen-page questionnaire containing sixty-five questions covering a wide range of subjects was drawn up on the basis of preliminary interviews and sent to a stratified random sample of 4,036 practicing attorneys throughout Japan; 1,689 questionnaires were returned with valid answers to most of the questions asked (see table 4.1).

The total population of practicing attorneys was divided into four sub-populations corresponding to the following four areas: A, Tokyo; B, Osaka and Aichi; C, other prefectures with a high court (Hokkaido, Miyagi, Hiroshima, Fukuoka, and Kagawa); D, all the other prefectures where no high court is located. The prefectures in area C are local centers of legal activities because of their high courts; those in area D generally are rural, although they include some highly industrialized prefectures adjacent to Tokyo and Osaka, such as Kanagawa and Hyogo.

Comparison of the respondents with the original sample with regard to the age, the year of registration as practicing attorney, the university attended, the method of qualification, and the prior occupation showed a statistically significant overrepresentation of younger lawyers, those registered more recently, those who passed the present legal examination, and those without any prior occupation, and an underrepresentation of those over seventy years of age and those who attended the University of Tokyo. However, the overall distribution is not greatly distorted. For detail, see Nichibenren (1981: 43ff.)

[2] For a general account of the history of the Japanese legal system and of the Japanese legal profession in particular, see Rabinowitz (1956), Takayanagi (1963), and Hattori (1963). A good introductory book on the Japanese legal system as a whole is Tanaka (1976), which also contains excerpts from the last two sources cited.

[3] For the details of the history of the modern legal system of Japan, see note 2, above.

[4] In this chapter the English term "practicing attorney" (sometimes abbreviated "PA") is used to designate the title "bengoshi."

[5] Practicing attorneys are required by law to set up a local association for each district court jurisdiction. Accordingly, there is one PA association in each prefecture, except that Tokyo has three, for historical reasons. The Japan Federation of Practicing Attorneys' Associations (JFPAA), also a legally prescribed institution, is constituted by all the PAs and all the local PA associations. All those associations are incorporated, and each PA must belong to one local association and the JFPAA. The purpose of both levels of association is "to perform the business in relation to the guidance, liaison and supervision of members in order to

maintain their dignity and to improve and develop the lawyers' business" (PA Act, art. 31).

Under the law, a person who has completed the legal apprentice course at the ILTR (see section entitled "Recruitment.") is qualified to become a PA. Those who were PAs under the former laws are regarded as having fulfilled this requirement. In addition, the law provides for some exceptional ways of qualifying as a PA (PA Act, art. 5), but only a small minority (less than I percent) of the present PAs have qualified in these ways. In order to become a PA, a person should be registered in the list maintained by the JFPAA. The applicant should request the registration through the local PA association, which has the power to refuse to forward this request to the JFPAA on certain grounds specified by the law (PA Act, art. 12). The complaint against the refusal eventually may be appealed to the high court (PA Act, art. 16).

Each PA Association has disciplinary powers over its members, which are exercised through a disciplinary committee whose members are selected from among PAs, judges, prosecutors, and persons of learning and experience (PA Act, arts. 52, 69).

[6] For a general account of the examination system as well as of the content of the examination and of the training at the ILTR, see Tanaka (1976: 566-582).

[7] The number who enter and leave the ILTR, as well as which branch of the profession they enter, are shown in table 4.2. The Legal Examination is not an entrance examination to the ILTR, and some of those who pass it choose not to enter the ILTR, at least immediately. Since those who have passed the Legal Examination can enter the ILTR whenever they choose, the entrants in a given year may include those who passed it some years previously. Those who enter the ILTR immediately after passing the Legal Examination actually do so the following year.

[8] The regular judges may be appointed from among those with ten years' experience as an assistant judge, summary court judge, public prosecutor, practicing attorney, and others (Courts Act, art. 42). In actuality, however, most judges are promoted from the ranks of assistant judges. Only a handful of practicing attorneys are appointed to judgeships (Tanaka, 1976: 552).

[9] In 1980, former judges and former prosecutors accounted for about 8 percent and 5.5 percent, respectively, of all private attorneys; both percentages were higher in areas C and D than in areas A and B. Some of these lawyers resigned their offices before retirement age, however. The reasons why judges abandon their careers have not been studied systematically, but the following factors are relevant. Judges usually are transferred from one place to another every few years, which causes increasing hardship when children begin to attend school. Some had chosen to serve as judges in order to get experience before becoming practicing attorneys later. After a period of service, some may feel that their career prospects within the judicial bureaucracy are not very bright. As to the relative income of judges and attorneys, see section entitled "Income."

With regard to the career structure of judges and prosecutors, the following account is relevant:

In Japan, most of the judges have chosen their position as their career job. This means that a typical judge is appointed to an assistant judgeship immediately after having received training for two years at the Legal Training and Research Institute, is promoted to the status of (full-fledged) judge after ten years, and intends (or is expected) to remain as a judge until the compulsory retirement age of sixty-five or seventy. Though it is guaranteed by Article 80 of the Constitution that judges "shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office" and although the Courts Act provides that they cannot be dismissed or ordered to move to another post against their will they in fact move from one position to another (usually every two to four years) as civil servants do. This practice is partly related to the graduated wage scale, which is not different in nature from the civil service wage scale, and partly related to tradition.

Public procurators also usually take the procuratorship as their career job. They, like other civil servants, not only in fact move from one position to another but are required by law to do so when requested. (Tanaka, 1976: 549-550; footnotes omitted)

[10] In 1979, mediation cases constituted about 36 percent of all civil disputes brought before court, including family matters (General Secretariat, Supreme Court, 1979). For a discussion of the actual working of this system, see Henderson (1965) and Rokumoto (1981).

[11] In ordinary civil litigation in courts of first instance, terminating in 1980, about 85 percent of the litigants in the summary court and about 40 percent of those in the district court were not represented by PAs (General Secretariat, Supreme Court, 1980).

[12] In mediation cases terminating in 1975 in summary courts (where most mediation takes place), 25.6 percent of plaintiffs and 10.9 percent of defendants were represented by a lawyer and 14.6 percent of plaintiffs and 12.9 percent of defendants by a nonlawyer.

[13] An assistant judge has limited power, cannot sit alone (see Tanaka, 1976: 462), and must serve ten years before being appointed to a regular judgeship.

[14] According to Tanaka (1976: 556), summary court judges are appointed either (1) from among those who have served for not less than three years as an assistant judge, public procurator or practicing attorney or (2) from among those "who have the knowledge and experience necessary for carrying out the duties of a summary court judge, such as those who have engaged in judicial business for many years" and have been recommended by the Summary Court Judges

Selection Committee. As a matter of practice, about half of the nearly 800 summary court judges had previously served as court clerks for many years.

[15] Changes in the size of the legal profession in Japan are shown in table 4.3.

[16] In England there were 28,939 solicitors and 4,263 barristers in private practice in 1978 for a population of about 55 million (Royal Commission, 1979, 2:46), and in West Germany there were 36,081 private attorneys or attorney-notaries and 942 nonattorney notaries in 1980 for a population of about 60 million (Anwaltsblatt, 1980: 145).

[17] The PA Act (1972) grants practicing attorneys a monopoly in the delivery of legal services for pay.

[18] Judical scriveners were recognized officially in 1919 and are distinct from notaries public. The latter also exist in Japan. They numbered about 444 in 1981 and were mostly retired judges or prosecutors. Their function is to authenticate legal actions and documents.

[19] According to an official statistical report of the Japanese Association of Judicial Scriveners, they handled 17,577,686 cases in 1980, earning fees of about ¥107,043 million; drafting court documents accounted for 178,652 cases and earned the judicial scriveners about ¥1,800 million (124 Geppo Shihoshoshi [Judicial Scriveners' Monthly ] 7 [March 1982]).

[20] Judicial scriveners publicly admit that some of them specialize in litigation (ibid.). The relationship between private attorneys and judicial scriveners is naturally antagonistic, the former constantly and vehemently accusing the latter of violating the monopoly of legal services accorded to private attorneys by law (Practicing Attorneys Act, art. 72). In view of the scarcity and maldistribution of private attorneys and the high price of their services, however, the complementary functions of judicial scriveners are generally recognized as inevitable. Courts also tend to construe the attorney's monopoly clause rather narrowly. Some advocate recognizing judicial scriveners as a second private branch of the legal profession. Instances of a business association between an attorney and a judicial scrivener are rare but not unlawful. In our survey, about 6 percent of attorneys indicated that there was a quasilawyer (not always a judicial scrivener) in their office, and another 12 percent had an ongoing relationship with a quasi-lawyer, which produced referrals in both directions.

The judicial scriveners, for their part, always have been eager to enhance their status, and their effort bore fruit in the 1978 amendment of the Judicial Scriveners' Act, which formalized and unified the qualifying examination administered by the Minister of Justice, so that it now includes some basic legal subjects, such as civil, commercial, and criminal law, as well as procedures for registration, deposit, and litigation (Judicial Scriveners' Act, art. 5). In 1982, 15,103 candidates sat the examination and 382 passed (2.5 percent), of whom 76 percent had a college education (133 Geppo Shihoshoshi [Judicial Scriveners' Monthly ] 16-17 [1982]).

[21] In 1979 there were 1,373 judicial scriveners in Tokyo and 1,073 in Osaka. The ratio of practicing attorneys to judicial scriveners in these cities was 3.80 and 1.75, respectively. The national ratio was 0.77, ranging from 0.10 in Kagoshima Prefecture to 0.99 in Aichi Prefecture (Kaneko & Takeshita, 1978:378).

[22] Of the 486 successful candidates in 1980, 70 (14 percent) were university students, 8 were graduate students, 60 (12 percent) had a regular occupation (public servants, employees of private firms, clerks in a lawyer's office, etc.), and 348 (72 percent) had no occupation (Nihon Houritsuka Kyoukai, 1982: 140). A tenth were women.

[23] For the curriculum of legal education at the University of Tokyo, a representative institution, see Tanaka (1976: 579-581).

[24] In the Faculty of Law of the University of Tokyo, for example, only 90 to 100 students out of a graduating class of about 600 eventually enter the ILTR. For the variation in the success rate in the Legal Examination among universities, see table 4.5.

[25] Growing foreign trade, government regulations, and consumer litigation have made Japanese corporations aware of the importance of having a staff specialized in legal matters, and many larger corporations today have such staffs. It seems safe to say that the legal section of the larger corporations have an average of about five employees with university legal education, and some large commercial companies have several dozen. A small proportion of these have passed the Legal Examination without going on to the ILTR. (Registered lawyers need to obtain permission from the Practicing Attorneys' Association before being employed regularly by a business firm, and there still are only a handful of such attorneys in Japan.) Some are sent abroad by the company for legal studies. Although they do not receive special treatment as professionals but are transferred to other sections as they ascend the career ladder within the company (a few may remain in the section for over ten years), these corporation "law-persons" tend to form a distinct occupational group, conscious of their legal expertise and work ethos. An association called "Friends of Managerial Law" was formed in 1971 and now contains the legal section members of 365 companies.

[26] About half of all employed lawyers earn between 2 and 3.5 million yen per year, and another quarter earn between 3.5 and 4 million yen. Today, those seeking employment demand a salary corresponding to that of their fellow graduates at the ILTR who enter the judiciary as assistant judges.

[27] The lawyers in area D are an exception: even the youngest lawyers frequently are not employed. This is because in such peripheral areas the number of lawyers is so small that any association among them, including employment, reduces the number of law offices in the locality, which obviously is to be avoided. The scarcity of lawyers also means that newcomers will find clients much more easily than their colleagues do in central cities.

[28] This index itself may reflect the characteristic pattern of Japanese legal practice, which is heavily dominated by litigation. Litigated cases can be counted easily and remain open longer in the lawyer's file than noncontentious matters. All litigation, therefore, may be slightly overrepresented in a survey based on this method, and criminal cases, many of which are terminated within a few months, may be underrepresented.

[29] In a 1973 German study, by contrast, practicing attorneys reported that they handled 334 civil or criminal matters per year, of which 130 were litigated (Volks, 1974: 252, 265). Australian solicitors and barristers also report receiving larger numbers of briefs (Tomasic & Bullard, 1978: 310). The smaller number of cases generating the income of Japanese lawyers naturally raises the question of whether their work costs significantly more money.

This difference in the volume of lawyers' business reflects the difference in court caseloads. In 1979, there were only 386,563 civil cases in courts of first instance, whereas West German courts heard 2,001,664 similar cases in 1974 (Anwaltsblatt, 1976:81).

[30] Divorce by consent is an established Japanese legal institution, accounting for more than 89 percent of all divorces each year.

[31] Criminal legal aid functions relatively well, but civil legal aid is only very weakly developed.

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