Japanese Lawyers' Duty of "Seijitsu" (Good Faith/Fidelity): Is it a Mere Ethical Guideline or a Legally Binding Obligation?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

When engaging legal counsel in Japan, understanding the core principles that govern their professional conduct is paramount. One such fundamental concept is "seijitsu-gimu" (誠実義務), a term often translated as "duty of good faith," "duty of sincerity," or "duty of fidelity." This duty is not merely a peripheral ethical consideration; it is explicitly stated in foundational legal texts, including Article 1, Paragraph 2 of the Lawyers Act (弁護士法) and Article 5 of the Basic Rules of Professional Conduct for Lawyers (弁護士職務基本規程). But what does this "seijitsu-gimu" truly entail, and more critically, is it a lofty ethical aspiration or a concrete legal obligation with tangible consequences for breach?

The Lawyers Act (Art. 1, Para. 2) mandates that lawyers "shall sincerely perform their duties" based on their mission to protect fundamental human rights and realize social justice. The Basic Rules of Professional Conduct (Art. 5) further elaborates, stating, "A lawyer shall respect truth, act in good faith, and perform their duties sincerely and fairly".

At its heart, "seijitsu-gimu" requires lawyers to act with honesty, integrity, and loyalty towards their clients. It encompasses a commitment to diligence, competence, and placing the client's legitimate interests at the forefront of their professional endeavors. This multifaceted duty forms the bedrock of the lawyer-client relationship in Japan, aiming to foster trust and ensure that clients receive dedicated and principled legal representation.

A significant point of discussion within Japanese legal scholarship and practice revolves around the precise legal nature of "seijitsu-gimu." Is it solely an ethical standard, guiding lawyers toward ideal conduct, or does it also function as a legally enforceable obligation, a breach of which could lead to civil liability or disciplinary action?

Arguments for "Seijitsu-Gimu" as a Legal Obligation:

The prevailing view, and one supported by considerable legal commentary, is that "seijitsu-gimu," particularly as it pertains to the lawyer-client relationship, transcends being a mere ethical guideline. This perspective often links "seijitsu-gimu" to the lawyer's contractual obligations under a mandate agreement (inin keiyaku, 委任契約) with their client, as governed by the Japanese Civil Code.

Under the Civil Code (Article 644), a mandatary (the lawyer) owes a "duty of care of a good manager" (zenkan chūi gimu, 善良な管理者の注意義務) to the mandator (the client). The argument posits that "seijitsu-gimu" for lawyers is an intensified or heightened version of this general duty of care, reflecting their specialized professional status and the public nature of their responsibilities. From this viewpoint, a breach of "seijitsu-gimu" can constitute a breach of the mandate contract, leading to potential claims for damages by the client due to the lawyer's failure to meet the expected professional standard. This interpretation underscores that "seijitsu-gimu" is not just about aspirational conduct but about meeting a defined level of professional responsibility, the failure of which has legal repercussions.

Arguments for "Seijitsu-Gimu" as Primarily an Ethical Norm:

Conversely, a minority view suggests that "seijitsu-gimu" is predominantly an ethical principle and that the existing "duty of care of a good manager" under the Civil Code already sufficiently covers the legal aspects of a lawyer's responsibilities. This perspective argues that the standard of care can be adjusted based on the specifics of the case and the lawyer's expertise, without needing "seijitsu-gimu" to impose additional legal weight. According to this line of thought, while a breach of "seijitsu-gimu" might be ethically reprehensible and could lead to disciplinary sanctions from the bar association, it would not automatically translate into civil liability unless there was also a clear breach of the more general duty of care.

However, given the significant trust placed in lawyers and the critical nature of their role in upholding rights and justice, the interpretation of "seijitsu-gimu" as an elevated legal duty—imposing a higher standard of conduct and accountability—appears to be the more robust and widely accepted position in Japan.

Comparison with U.S. Concepts: Fiduciary Duty

To offer a point of comparison for U.S. legal professionals, the Japanese "seijitsu-gimu" shares some conceptual similarities with the "fiduciary duty" owed by attorneys to their clients in common law jurisdictions. A fiduciary duty in the U.S. context typically involves a heightened duty of loyalty, care, confidentiality, and acting in the utmost good faith for the benefit of the client, avoiding self-dealing and conflicts of interest.

Some Japanese commentators suggest that framing the lawyer-client relationship in Japan as a "fiduciary relationship" (shinnin kankei, 信認関係), with "seijitsu-gimu" being akin to a fiduciary duty, might more accurately capture the high degree of responsibility and trust expected of lawyers. This perspective emphasizes that the lawyer, as the fiduciary (juninsha, 受認者), is strictly obligated to prioritize the interests of the beneficiary (the client, juekisha, 受益者). While the Japanese legal system doesn't formally adopt the term "fiduciary duty" in the same way as U.S. law, the underlying principles of undivided loyalty and acting in the client's best interests are strongly embedded within the concept of "seijitsu-gimu." The ongoing evolution of legal practice in Japan, including an increase in the number of lawyers and changing societal expectations, may lead to further refinements in how this core duty is understood and applied, potentially drawing further parallels with established fiduciary principles.

Practical Manifestations of "Seijitsu-Gimu" Towards the Client

The "seijitsu-gimu" owed to a client translates into several concrete obligations throughout the course of legal representation. These include:

  1. Prompt and Diligent Action: Upon accepting a case, a lawyer must commence work promptly and handle the matter without undue delay (Basic Rules of Professional Conduct, Art. 35).
  2. Adequate Reporting and Consultation: Lawyers are obliged to keep their clients reasonably informed about the progress of their case and consult with them on important decisions (Civil Code, Art. 645; Basic Rules of Professional Conduct, Art. 36). This ensures transparency and allows the client to make informed choices.
  3. Thorough Investigation: The duty includes conducting necessary legal research and, where possible and necessary, factual investigations to properly understand and handle the case (Basic Rules of Professional Conduct, Art. 37).
  4. Realizing Legitimate Rights and Interests: The core of the representation is to strive to achieve the client's rights and legitimate interests (Basic Rules of Professional Conduct, Art. 21). The emphasis on "legitimate" interests is crucial, as it implies that lawyers cannot pursue objectives that are unlawful or clearly unjust.
  5. Careful Handling of Client Property: Lawyers must manage any client funds or property entrusted to them with a high degree of care, keeping them separate from their own assets (Basic Rules of Professional Conduct, Art. 38, 45).

A failure in these duties can lead to civil liability. For example, if a lawyer misses a critical statutory deadline due to negligence, provides demonstrably incorrect legal advice leading to financial loss, or fails to adequately inform the client about significant developments, they may be sued for damages arising from a breach of their mandate contract, underpinned by the "seijitsu-gimu." However, it is also recognized that lawyers, as highly specialized professionals, are afforded a certain degree of discretion in their handling of cases. Liability for professional judgment typically arises only when that discretion is clearly abused or when their actions fall below the standard of a reasonably competent lawyer in similar circumstances.

"Seijitsu-Gimu" in Relation to Third Parties and the Courts: A Distinct Consideration

While "seijitsu-gimu" is primarily understood as a duty owed to the client, the term is sometimes also invoked in discussions about a lawyer's responsibilities towards opposing parties, third parties, and the courts. The Basic Rules of Professional Conduct, for instance, in Article 5, states that lawyers shall "respect truth, act in good faith, and perform their duties sincerely and fairly" – with "fairly" (kōsei ni, 公正に) suggesting broader obligations.

However, it is argued that the "sincerity" or "good faith" expected in these broader contexts is different in nature from the specific, loyalty-based "seijitsu-gimu" owed to one's own client. Instead of being a direct extension of the client-focused duty, these broader obligations are better understood as constraints on a lawyer's professional conduct necessary for the realization of social justice and the maintenance of the integrity of the legal system as a whole.

This perspective suggests that while a lawyer must zealously advocate for their client, they cannot do so in a manner that fundamentally undermines the fairness of the process or involves deceit towards others. For example, a lawyer should not knowingly present false evidence or make false statements of material fact to a tribunal or a third party. This duty to the system and to truth operates as a limit on how far a lawyer can go in pursuing a client's interests.

The Basic Rules of Professional Conduct contain several provisions that reflect these constraints, such as:

  • The duty to respect truth (Art. 5).
  • The prohibition against accepting cases where the client's objective or the method of handling the case is clearly improper (Art. 31).
  • Rules governing interactions with an opposing party who is represented by counsel (Art. 52).
  • Prohibitions on knowingly abetting false testimony or submitting false evidence (Art. 75).

A Tokyo District Court judgment on October 15, 1987, touched upon a lawyer's broader responsibilities, stating that if a lawyer becomes aware of a risk that illegal acts may be committed in connection with legal affairs they are handling, they should make maximum efforts to prevent such acts, and that passively allowing them is impermissible; this was framed not merely as an ethical issue but as a legal duty. This can be interpreted as reflecting the "constraint on professional conduct" in the interest of maintaining social order, rather than a direct application of the client-focused "seijitsu-gimu."

The Client's "Legitimate Interests" as a Limiting Principle

The "seijitsu-gimu" is directed towards achieving the client's "legitimate interests" (seitō na rieki, 正当な利益) (Basic Rules of Professional Conduct, Art. 21). This qualification is vital. It means that a lawyer’s duty of loyalty and diligence is not absolute or blind. If a client seeks to achieve an objective that is illegal, fraudulent, or otherwise clearly contrary to social justice, the lawyer is not bound—and indeed is ethically precluded—from assisting in such an endeavor.

The "legitimate interests" are generally understood as those interests that are legally sound and defensible, as assessed by the lawyer in their independent professional judgment, rather than merely fulfilling any and every desire or wish of the client. Thus, if a client insists on pursuing a course of action that the lawyer deems to be clearly improper or abusive of the legal process, the lawyer has a duty to counsel the client against it and, if the client persists, may be ethically required to withdraw from representation.

Enforcement and Significance

Breaches of "seijitsu-gimu," especially those resulting in harm to the client, can lead to disciplinary proceedings by the relevant bar association, which may impose sanctions ranging from a reprimand to disbarment. Furthermore, as discussed, such breaches can form the basis for civil malpractice claims.

The "seijitsu-gimu" is therefore more than just an ethical ideal for Japanese lawyers. In the context of the lawyer-client relationship, it functions as a legally significant duty that underpins their professional responsibilities, demanding a high standard of conduct characterized by sincerity, good faith, loyalty, and diligence. While its application to third parties and the courts involves a different set of considerations related to the overall integrity of justice, its core meaning defines the expected standard of service and dedication a client is entitled to receive from their bengoshi. Its robust interpretation and enforcement are crucial for maintaining public trust in the legal profession and the administration of justice in Japan.