Attorney-Client Privilege in Japan: How Broad is a Lawyer's "Shuhi-Gimu" (Duty of Confidentiality) and When Can it Be Breached?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

The bedrock of any effective lawyer-client relationship is trust, and a cornerstone of that trust is the assurance of confidentiality. In Japan, this principle is embodied in the lawyer's (bengoshi) duty of confidentiality, known as shuhi-gimu (守秘義務). This duty is not merely a matter of professional courtesy; it is a fundamental ethical and legal obligation with significant implications for clients, including international businesses seeking legal counsel in Japan. Understanding the scope of shuhi-gimu and the limited circumstances under which it might be breached is crucial for anyone engaging with the Japanese legal system.

The duty of confidentiality is deeply embedded in the Japanese legal framework governing lawyers. Its primary purpose is to encourage clients to communicate fully and frankly with their legal counsel. Without the assurance that their sensitive information will be protected, clients might withhold details crucial for the lawyer to provide accurate advice and effective representation—whether these details are favorable or unfavorable.

Key legal provisions underpinning shuhi-gimu include:

  • Lawyers Act (弁護士法), Article 23: This foundational statute stipulates that "A lawyer or a person who was formerly a lawyer shall have the right and bear the duty to maintain the secrecy of any fact which they may have come to know in the course of performing their duties; provided, however, that this shall not apply where otherwise provided for by law." This provision uniquely frames confidentiality as both a right (e.g., to refuse disclosure to third parties, including state authorities) and a duty (owed to the client).
  • Basic Rules of Professional Conduct for Lawyers (弁護士職務基本規程), Article 23: These rules, established by the Japan Federation of Bar Associations (JFBA), further clarify that "A lawyer shall not, without justifiable reason, disclose to a third party or utilize any secret concerning a client which they have come to know in the course of performing their duties."
  • Related Protections: The Penal Code (刑法), Article 134, criminalizes the unauthorized disclosure of professional secrets by individuals such as lawyers. Furthermore, procedural laws like the Code of Criminal Procedure (Articles 105 and 149) and the Code of Civil Procedure (Articles 197(1)(ii) and 220(4)(c)) grant lawyers the right to refuse testimony or the seizure/production of documents concerning client secrets learned through their professional duties.

This robust framework ensures that shuhi-gimu is more than an ethical aspiration; it is a legally recognized and protected principle essential for the lawyer's ability to function effectively and for the proper administration of justice.

The Scope of Confidential Information: What is a "Secret"?

The term "secret" (himitsu, 秘密) within the context of shuhi-gimu is interpreted broadly to offer maximum protection to client communications. It generally encompasses:

  1. Subjective Element: Information that the client wishes to keep confidential.
  2. Objective Element: Information that, by societal norms, would generally be considered private or that a reasonable person would not want disclosed.

This broad definition covers a vast range of information, including but not limited to: a client's past conduct (even if potentially unethical or criminal), personal affairs, medical history, financial status, family relationships, business strategies, trade secrets, and the content of legal advice sought or given.

Crucially, the duty applies to information "learned in the course of performing their duties" (shokumu-jō shirieta, 職務上知り得た). This is also construed widely. It covers information obtained not only from formally retained clients but also from individuals who consult a lawyer even once (perhaps without even formally retaining them or giving their full name), provided the consultation was based on a relationship of trust with the expectation of confidentiality. The duty extends to information about potential clients who ultimately do not retain the lawyer.

Information that is already genuinely in the public domain through no fault of the lawyer or client (e.g., widely reported news, information in public records) may cease to be a "secret." However, even in such cases, lawyers are expected to exercise caution and refrain from further disseminating or confirming such information if it originated from a confidential client communication.

The duty of confidentiality is indefinite in duration. It continues even after the lawyer-client relationship has ended, the specific matter has concluded, or the lawyer has retired or left their firm (with respect to information learned during their tenure).

Beyond Non-Disclosure: The Duty Not to "Utilize" Secrets

The shuhi-gimu under Article 23 of the Basic Rules of Professional Conduct goes beyond merely prohibiting unauthorized "disclosure" (rōei, 漏洩) of client secrets. It also forbids their unauthorized "utilization" (riyō, 利用). This means a lawyer cannot use confidential client information for their own personal benefit or for the benefit of a third party, even if such use does not involve direct disclosure to others. A classic example would be a lawyer using confidential information about a client company's impending merger to engage in insider trading. Such utilization is a breach of duty regardless of whether it causes harm to the client, although harm would certainly exacerbate the consequences.

While shuhi-gimu is extensive, it is not absolute. Both the Lawyers Act (Art. 23 proviso: "where otherwise provided for by law") and the Basic Rules (Art. 23: "without justifiable reason") acknowledge that there are circumstances where disclosure may be permissible or even mandated. Identifying these exceptions requires careful judgment.

1. Client's Informed Consent:
This is the most straightforward exception. If a client, after being fully informed of the implications, expressly consents to the disclosure of specific confidential information, the lawyer may disclose it. Implied consent might be argued in very limited emergency situations (e.g., to protect the client's immediate and vital interests when the client is unreachable), but this is a high bar and requires extreme caution.

2. Legal Obligation or Compulsion:
If a specific law mandates disclosure, this would fall under the proviso in Lawyers Act Art. 23. Examples might include certain reporting obligations under anti-money laundering statutes or child abuse reporting laws, though the direct applicability and overriding nature of such laws to the lawyer's shuhi-gimu require careful legal analysis in each specific context. Court orders for testimony or document production may also compel disclosure, but even here, lawyers have rights to refuse based on confidentiality (as noted above), and these rights should generally be asserted unless the client consents or a higher legal duty to disclose is unequivocally established.

3. Preventing Imminent and Serious Harm:
A widely, albeit cautiously, recognized "justifiable reason" for breaching confidentiality is to prevent imminent death or serious bodily harm to any person. If a lawyer reasonably believes that a client intends to commit an act that will lead to such harm, the lawyer may be permitted to disclose the minimum necessary information to prevent it. Disclosure to prevent purely financial harm or property crimes has traditionally been a more contentious issue in Japan, with a higher threshold for justification than for threats to life or physical safety.

4. Lawyer's Self-Defense:
A lawyer may disclose confidential client information to the extent reasonably necessary to defend themselves against accusations of wrongdoing. This includes:

  • Defending against a criminal charge or civil claim brought by the client or a third party concerning the lawyer's conduct in the representation.
  • Responding to a disciplinary complaint filed against the lawyer.
  • Establishing a claim for fees or expenses against a client in a fee dispute.
    The disclosure in such instances must be strictly limited to what is necessary for the defense or claim.

5. Internal Firm Communications for Operational Necessity:
Disclosure of client information within a lawyer's own firm is generally permissible for legitimate operational purposes, such as:

  • Conflict of interest checks.
  • Supervision of junior lawyers or staff working on the client's matter (Basic Rules, Art. 19).
  • Seeking advice from other lawyers within the firm on a complex legal issue concerning the client's case.
    This is based on the understanding that the firm, as a whole, owes duties to the client, and clients generally expect such internal sharing for the effective handling of their affairs. Firms have a corresponding duty to ensure all members and staff also maintain confidentiality (Basic Rules, Art. 56 for joint offices, Art. 62 for lawyer corporations).

6. Consultation with External Lawyers (with caution):
If a lawyer needs to consult with another lawyer outside their firm about a client's matter, especially if it involves sharing confidential details, the client's prior informed consent should generally be obtained.

The "Public Interest" and Evolving Discussions

The tension between the lawyer's duty of confidentiality and the broader "public interest" (kōkyō no rieki, 公共の利益) is a subject of ongoing discussion globally and in Japan. The traditional stance in Japan has been very protective of confidentiality, with exceptions being narrowly construed.

International developments, such as amendments to the ABA Model Rules of Professional Conduct in the U.S. following corporate scandals like Enron (e.g., Rule 1.6(b)(2) and (3) allowing disclosure to prevent or rectify substantial financial injury to another where the lawyer's services were used), have spurred debate. These rules allow, but generally do not require, disclosure under such circumstances.

In Japan, there are currently no explicit provisions in the Basic Rules of Professional Conduct that broadly permit lawyers to disclose client confidences solely to prevent or rectify substantial financial harm to third parties, even if the lawyer's services were used in the wrongdoing (unless it also involves, for example, an imminent threat to life or body, or falls under a specific statutory override). The primary recourse for a lawyer who discovers their services are being used for a client's ongoing or future crime or fraud is typically to remonstrate with the client and, if unsuccessful, to withdraw from the representation.

However, the JFBA has considered potential amendments to its ethical rules to provide clearer guidance. For instance, a previously circulated proposal for revising Article 23 of the Basic Rules suggested explicitly allowing disclosure, to the necessary extent, in cases including: (i) client's consent, (ii) lawyer's self-defense, and (iii) "when there is a risk of infringing a significant public interest and recovery from such infringement is remarkably difficult." The adoption and interpretation of such provisions will continue to shape the landscape of lawyer confidentiality in Japan, balancing the fundamental need for client trust with broader societal concerns.

Comparing Japanese "Shuhi-Gimu" with U.S. Attorney-Client Privilege and Duty of Confidentiality

For U.S. practitioners, it's useful to note some comparative points:

  • Ethical Duty vs. Evidentiary Privilege: U.S. law distinguishes between the broader ethical duty of confidentiality (ABA Model Rule 1.6), which covers nearly all information relating to the representation of a client, and the narrower attorney-client privilege, which is an evidentiary rule protecting confidential communications between a lawyer and client made for the purpose of obtaining legal advice from disclosure in legal proceedings. Japan's shuhi-gimu under the Lawyers Act and Basic Rules functions more like the broad ethical duty, while specific procedural laws (Codes of Civil and Criminal Procedure) provide testimonial and production privileges that are akin to the evidentiary privilege.
  • Scope of Exceptions: While both systems recognize exceptions like client consent and lawyer self-defense, the U.S. system has more explicitly developed exceptions like the crime-fraud exception (where communications made in furtherance of a crime or fraud are not privileged). As mentioned, the U.S. rules also provide more latitude for disclosure to prevent or rectify substantial financial harm where a lawyer's services are implicated, an area where Japanese rules have traditionally been more restrictive.
  • "Right" and "Duty": The Japanese Lawyers Act's unique framing of confidentiality as both a "right" (of the lawyer to resist disclosure) and a "duty" (to the client to maintain secrecy) emphasizes its dual nature as a shield for the client and a professional obligation of the lawyer.

Conclusion

The duty of confidentiality, or shuhi-gimu, is a sacrosanct principle for Japanese lawyers, vital for fostering the trust necessary for effective legal representation and the proper functioning of the justice system. It is defined broadly to protect a wide range of client information and extends indefinitely.

While this duty is robust, it is not absolute. Disclosure is permissible with client consent, when legally mandated, to prevent imminent serious harm to life or limb, or for the lawyer's necessary self-defense. The ongoing discussions, including proposed rule amendments regarding disclosure in cases of "significant public interest," indicate that the Japanese legal profession continues to refine the balance between this fundamental duty and other compelling societal values. For any party, domestic or international, engaging with Japanese bengoshi, a clear understanding of this comprehensive duty of confidentiality is essential.