How Much Authority Does My Japanese Lawyer Have in Court? The Scope of an Attorney's Power in Litigation

When engaging legal counsel in Japan for civil litigation, understanding the extent of your attorney's (bengoshi) authority to act on your behalf is paramount. While clients grant a power of attorney, the Japanese Code of Civil Procedure (CCP) itself delineates certain powers that an attorney inherently possesses and, more importantly, specifies certain critical litigation acts that require explicit special authorization from the client. This framework aims to balance the attorney's need for operational flexibility in managing a case with the client's ultimate control over pivotal decisions that fundamentally affect their rights and the outcome of the dispute. A particular area of focus often involves the attorney's authority to enter into in-court settlements.

Representation in Japanese Civil Litigation: An Overview

In Japanese civil proceedings, parties can be represented in several ways. While statutory representation (hōtei dairi) applies in cases involving minors or legally incapacitated individuals, most commercial litigation involves consensual representation (nin'i dairi) where a party appoints a representative, typically an attorney, through a power of attorney (inin-jō).

Article 54(1) of the CCP establishes a general principle that, except for litigation in Summary Courts (where, with court permission, non-attorneys may act as representatives), only attorneys can conduct litigation as representatives for others. This underscores the specialized role of attorneys in the Japanese legal system.

The Statutory Framework: Attorney's Authority under CCP Article 55

Article 55 of the CCP is the central provision governing the scope of a litigation representative's authority. It distinguishes between general powers and those requiring specific client consent.

1. General Scope of Authority (CCP Article 55(1))

Once an attorney is validly appointed, they are empowered to perform a wide range of "acts of litigation" (soshō kōi) concerning the case for which they have been retained. This broad, inherent authority includes:

• Filing and pursuing claims and defenses.
• Making allegations and presenting arguments.
• Offering and examining evidence.
• Appearing at court hearings.
• Receiving service of court documents and notices.
• Performing acts related to counterclaims (hanso – specifically, responding to or dealing with a counterclaim raised by the opponent), intervention by third parties (sanka), and compulsory execution proceedings (kyōsei shikkō).
• Receiving payments made pursuant to the litigation (e.g., a judgment debt paid by the opposing party).

This general authority allows the attorney to manage the day-to-day conduct of the litigation efficiently without needing to seek separate client approval for every procedural step.

2. Non-Restrictable Authority for Attorneys (CCP Article 55(3))

A unique feature of Japanese law is that for attorneys acting as litigation representatives, the scope of the general authority described in Article 55(1) cannot be restricted by the client. This means that a client cannot, for example, tell their attorney that they are not authorized to receive service of documents or to make certain routine procedural arguments related to the existing claim.

The rationale behind this non-restrictable authority is to ensure the smooth and reliable progress of litigation. Opposing parties and the court must be able to rely on the apparent authority of a duly appointed attorney to perform these standard litigation functions. If clients could privately limit these core powers, it could create uncertainty and procedural impasses.

3. Acts Requiring Special Authorization (CCP Article 55(2))

While an attorney's general litigation authority is broad, Article 55(2) lists several specific acts that are considered so critical to the client's substantive rights or the ultimate disposition of the dispute that they fall outside the attorney's general mandate. To perform these acts, the attorney must receive explicit special authorization from the client, typically documented in the power of attorney or a separate written authorization. These acts include:

• (i) Filing of a counterclaim (hanso no teiki): While an attorney has general authority concerning counterclaims (e.g., defending against one), initiating a new counterclaim on behalf of the client requires special authorization.
• (ii) Withdrawal of a claim (uttae no torisage), an appeal (kōso, jōkoku), or any part thereof: These acts terminate or reduce the scope of the client's pursuit of judicial relief.
• (iii) Reaching an in-court settlement (wakai): Given that an in-court settlement has the same effect as a final and binding judgment, client consent is paramount. This is a frequently contested area regarding the extent of authority covered by a general "authorization to settle."
• (iv) Waiving or acknowledging a claim (seikyū no hōki mata wa nindaku): These are acts by which a plaintiff gives up their claim entirely, or a defendant admits the plaintiff's claim in full, both leading to a definitive (and often adverse for one party) conclusion of the litigation.
• (v) Filing of an appeal (e.g., a kōso appeal to the High Court, or a jōkoku appeal to the Supreme Court): The decision to escalate a case to a higher court involves further costs and strategic considerations.
• (vi) Appointment of a sub-agent or sub-representative (fuku-dairinin no sennin): Delegating the representation to another person.

In practice, standard power of attorney forms used by Japanese attorneys often include pre-printed clauses that grant these special authorizations. It is crucial for clients to carefully review these forms and understand the scope of powers they are granting. The underlying purpose of requiring special authorization is to protect the client by ensuring their informed consent for actions that have a profound and often irreversible impact on their legal position.

Focus: The Attorney's Authority to Enter into In-Court Settlements

One of the most significant acts requiring special authorization, and an area that has generated considerable legal discussion, is the attorney's authority to conclude an in-court settlement (wakai). As stipulated by CCP Article 267, an in-court settlement, once recorded in the court record, has the "same effect as a final and binding judgment." This includes enforceability.

The central question often becomes: If a client gives their attorney special authorization to "settle the case," does this authority extend to agreeing to settlement terms that involve matters beyond the original subject matter (soshōbutsu) of the lawsuit? For example, if the lawsuit is for eviction, can the attorney agree to a settlement where the tenant (client's opponent) purchases the property, or where the client (landlord) agrees to create a mortgage on a different property to secure payments to the tenant? These terms involve rights and obligations not initially part of the pleaded dispute.

Japanese legal scholarship and judicial practice have grappled with defining the permissible boundaries of this settlement authority. Three main theoretical approaches have emerged:

1. The Strict View (Genkaku Setsu): This view maintains that an attorney's special authorization to settle is, by default, limited to the specific subject matter of the ongoing litigation or matters that are intrinsically identical or inseparable from it. To agree to terms involving extraneous rights or obligations (e.g., disposition of property not in dispute, creation of new, unrelated obligations), the attorney would need explicit, specific authorization from the client for those particular extraneous terms. The rationale is to protect the client from having their attorney dispose of rights or undertake obligations that the client never contemplated would be part of the settlement for that specific lawsuit.
2. The Unlimited View (Museigen Setsu): At the other extreme, this view posits that once a client grants special authorization to settle, the attorney possesses broad, virtually unrestricted authority to agree to any terms that could form part of a legally valid settlement, including terms that go beyond the original subject matter. Proponents of this view often emphasize practical convenience in negotiations, a general trust in the professional ethics of attorneys to act in their client's best interest, and the fact that in-court settlements are concluded under the supervision of a judge, which provides some safeguard.
3. The Intermediate or Eclectic View (Setchū Setsu): This is generally considered the prevailing approach in both academic theory and judicial practice. It holds that an attorney's special authority to settle is neither strictly confined to the original subject matter nor entirely unlimited. Instead, the authority is deemed to extend to terms that are reasonably related to the comprehensive resolution of the underlying dispute and that do not unduly prejudice the client's interests beyond what is normally foreseeable or expected in the context of settling that particular type of dispute.
   Determining these "reasonable" boundaries often involves considering factors such as:
   • Whether the terms agreed upon are a common or recognized method of compromise for similar types of disputes.
   • The necessity or utility of the extraneous terms for achieving a complete and final resolution of the conflict between the parties.
   • Whether the terms fall within the client's rational range of expectations when they authorized their attorney to pursue a settlement.
   • A balancing of the client's interest in controlling the disposition of their rights against the practical needs of achieving a workable and definitive settlement.

Judicial Precedents on the Scope of Settlement Authority

Japanese case law provides guidance on how these principles are applied:

• A pre-war Supreme Court (Daishin'in) decision of May 17, 1933 (Shinbun No. 3561, p. 10) concerned a lawsuit where only a portion of a larger monetary claim was initially sued upon. The Court found that the attorney, with special authorization to settle, had the authority to settle the entire underlying debt, including the portion not formally part of the lawsuit's subject matter. This suggested a willingness to look beyond the strictly pleaded soshōbutsu if the settlement aimed to resolve the broader underlying debt relationship.
• The Supreme Court of Japan, in its decision of February 21, 1963 (Minshu Vol. 17, No. 1, p. 182), dealt with a loan recovery lawsuit. The defendant's attorney, holding special authorization for settlement, agreed to terms that included rescheduling the loan payments and, importantly, creating a mortgage on the defendant's real property to secure the rescheduled debt (the creation of a mortgage was not part of the original claim). The Supreme Court upheld the attorney's authority to agree to these terms, reasoning that the creation of the mortgage was a "method of mutual concession concerning the subject matter of litigation" and was aimed at facilitating the overall resolution of the debt dispute. This decision lends strong support to an intermediate or broader interpretation of settlement authority.
• In a more recent and complex case, the Supreme Court on March 24, 2000 (Minshu Vol. 54, No. 3, p. 1126), indicated that an attorney's authority to settle could extend to resolving claims that were technically different from the one originally litigated, provided these other claims arose from the same "series of disputes" or were inextricably linked to the core conflict being addressed. This again points towards a flexible, context-sensitive approach rather than a rigidly formalistic one.

The overall judicial trend in Japan appears to be a pragmatic one, moving away from an overly strict limitation of settlement authority. Courts tend to examine whether the settlement terms, even if they touch upon matters technically outside the original pleadings, are reasonably ancillary to resolving the core dispute in a comprehensive manner and whether they are consistent with the likely intentions of a client seeking a final end to the conflict.

The Attorney's Overarching Duty to the Client

It is crucial to emphasize that even when an attorney possesses the formal legal authority (including any necessary special authorizations) to perform a litigation act, such as entering into a settlement, they remain bound by their professional and ethical duties to their client. These duties include:

• Acting in the client's best interests.
• Keeping the client fully informed of significant developments and settlement proposals.
• Consulting with the client and, for critical decisions like settlement, obtaining the client's informed consent to the specific terms, particularly if those terms involve significant concessions or matters outside the direct scope of the original dispute.

An attorney who agrees to a settlement that is procedurally binding (because they had formal authority) but which is substantively contrary to the client's clearly expressed instructions or demonstrably harmful to the client's interests without proper consultation and consent could potentially face a claim for legal malpractice (bengo kago).

Importance of Clear Client-Attorney Communication

To avoid misunderstandings and ensure that the attorney's actions align with the client's objectives:

• Open Discussion: Clients should have frank and detailed discussions with their Japanese attorneys at the outset of the engagement and throughout the litigation regarding the scope of the attorney's authority, especially concerning settlement parameters.
• Specific Instructions: If a client wishes to reserve the final decision on certain types of settlement terms (e.g., any settlement exceeding a certain monetary value, or any settlement involving non-monetary obligations not originally contemplated), these instructions should be clearly communicated to the attorney, ideally in writing as part of the retainer agreement or a supplementary mandate. While standard powers of attorney may grant broad special authorizations, specific client instructions can help guide the attorney's exercise of those powers.

Conclusion

The Japanese Code of Civil Procedure provides a well-defined framework for the authority of litigation representatives. Attorneys are granted broad powers for the general conduct of litigation, ensuring procedural efficiency. However, for acts with profound consequences for the client's rights and the ultimate outcome of the dispute—such as withdrawing a claim, filing an appeal, or, critically, entering into an in-court settlement—explicit special authorization from the client is mandated.

Regarding in-court settlements, while the requirement for special authorization is clear, the precise extent of an attorney's authority to agree to terms (especially those that go beyond the originally pleaded subject matter) is often determined by a pragmatic, intermediate approach by the courts. This approach tends to allow terms reasonably connected to resolving the overall underlying dispute, provided they are not unforeseeably prejudicial to the client. Ultimately, the foundation of effective representation lies not just in the formal grant of authority but in continuous, clear communication between client and attorney to ensure that all actions taken, particularly in the critical area of settlement, truly reflect the client's informed will and best interests.