Navigating "Truth Duty" (Shinjitsu-Gimu) for Lawyers in Japan: What Happens When Client Interests and Truth Collide?

Japanese Attorney at Law - Bengoshi L.L.

30 May 2025 • 7 min read

For legal professionals operating in or engaging with the Japanese legal system, understanding the ethical obligations of Japanese lawyers (bengoshi) is crucial. Among these, the "truth duty" or shinjitsu-gimu (真実義務) presents a particularly complex and nuanced area, especially when it appears to intersect or conflict with a lawyer's primary responsibilities to their client. This duty, while foundational to the integrity of the justice system, requires careful navigation in practice.

The Foundation and Nature of "Shinjitsu-Gimu"

In Japanese civil litigation, parties themselves have a legally stipulated duty regarding truth. Article 2 of the Code of Civil Procedure (民事訴訟法) generally requires parties to conduct proceedings in good faith and an expeditious manner. More specifically, penalties can be imposed on parties for making false statements under oath (Article 209) or for disputing the authenticity of a document without justifiable grounds (Article 230). This establishes a clear legal expectation for litigants to adhere to truthfulness.

For lawyers, the situation is slightly different. The Code of Civil Procedure does not directly impose a "truth duty" on lawyers in the same way it does on parties. However, such a duty is inferred and made more explicit through other channels. Firstly, as agents representing parties who are themselves bound by a truth obligation, lawyers are indirectly connected to this principle. Secondly, and more significantly, the lawyer's broader mission, as stipulated in Article 1 of the Lawyers Act (弁護士法)—to protect fundamental human rights and realize social justice—provides a strong ethical underpinning.

The Basic Rules of Professional Conduct for Lawyers (弁護士職務基本規程) crystallize this expectation. Article 5 states, "A lawyer shall respect truth, act in good faith, and perform their duties sincerely and fairly." Furthermore, Article 75 explicitly prohibits lawyers from instigating false testimony or knowingly submitting false evidence. Therefore, while not a direct statutory duty under procedural law in the same vein as for parties, a shinjitsu-gimu for lawyers is firmly established through their ethical codes and their fundamental professional mission. It’s often understood more as a duty to respect truth rather than an unqualified obligation to reveal all known truths, particularly if detrimental to a client in an adversarial civil context.

Understanding "Truth": The Subjective Element

A critical aspect of the Japanese lawyer's shinjitsu-gimu is the understanding of what "truth" signifies in this context. Legal commentary and practice suggest that it primarily refers to subjective truth, rather than objective or absolute truth. Subjective truth here means what the lawyer, after diligent inquiry and in their sound professional judgment, believes to be true.

This implies that if a lawyer presents a factual assertion based on the information provided by the client and their own investigation, and this assertion is later found by the court to be incorrect, it does not automatically constitute a breach of the lawyer's shinjitsu-gimu. The duty is focused on the lawyer's belief and the diligence of their inquiry, not on guaranteeing the objective correctness of every claim. This "subjective truth" approach acknowledges the inherent limitations in uncovering absolute truth within the adversarial system and the lawyer's reliance on client-provided information.

The Central Dilemma: "Shinjitsu-Gimu" vs. Client-Centric Duties

The most challenging aspect of shinjitsu-gimu arises when it appears to conflict with other core duties a lawyer owes to their client, namely the duty of sincerity/fidelity (seijitsu-gimu) and the duty of confidentiality (shuhi-gimu). The primary role of a lawyer in an adversarial civil system is to advocate for their client's legitimate interests. This creates a natural tension: how does a lawyer reconcile the duty to respect truth with the duty to zealously represent their client, especially when the client's version of events or desired course of action seems to deviate from what the lawyer perceives as true?

This "truth duty," when considered in relation to the court and third parties, often functions as a constraint on the lawyer's conduct, a boundary set by the overarching demands of justice and the integrity of the legal system. It is not a duty that requires the lawyer to act against the client's legitimate interests but rather one that prevents the lawyer from actively participating in the distortion of truth or the abuse of legal process.

Several practical scenarios illustrate the complexities of navigating shinjitsu-gimu:

1. When the Client Intends to Present Falsehoods:
If a client informs their lawyer of an intention to assert facts the lawyer knows to be false, or to submit fabricated evidence, the lawyer's shinjitsu-gimu and ethical obligations are clear. The lawyer must not assist in such conduct. Article 75 of the Basic Rules of Professional Conduct prohibits instigating false testimony or knowingly presenting false evidence. The lawyer's duty in this situation is to counsel the client against such actions, explaining the legal and ethical ramifications. If the client persists, the lawyer may be ethically compelled to withdraw from representation, as continuing would involve them in misleading the court or advancing a fraudulent claim.

2. Discovering Client's Assertions are False Mid-Litigation:
A more difficult situation arises if a lawyer, having initially believed the client's account, discovers during the course of litigation that the client's crucial assertions are, in fact, false.

The lawyer's first step should be to discuss the matter thoroughly with the client, presenting the new information or evidence that contradicts the client's position. The aim would be to persuade the client to correct the record or retract the false assertion.
However, if the client refuses, the lawyer is in a precarious position. They cannot unilaterally disclose the client's falsehood to the court or the opposing party, as this would typically breach the duty of confidentiality (shuhi-gimu) and the duty of loyalty inherent in the mandate (inin) relationship.
Continuing to advocate for a position the lawyer now knows to be false can be seen as participating in the client's breach of their own truth duty to the court and could mislead the tribunal.
In such an intractable situation, where the client insists on maintaining a false position, the lawyer's ethical recourse is often limited to considering withdrawal from the case. This decision itself must be handled carefully to minimize prejudice to the client, but it may be the only way for the lawyer to avoid compromising their own ethical obligations.

3. Lawyer's Possession of Evidence Detrimental to the Client:
What if a lawyer, through their investigation or from the client, comes into possession of evidence that is clearly detrimental to the client's case in civil litigation?

In Japan's adversarial civil system, there is generally no affirmative duty for a lawyer to proactively volunteer all detrimental evidence to the opposing party or the court. The burden of proof and evidence gathering lies with the party making an assertion. Specific obligations to produce documents only arise under particular procedural rules, such as a court order for document production (Code of Civil Procedure, Art. 220 et seq.).
To submit such detrimental evidence without the client's informed consent would almost certainly violate the duties of confidentiality and loyalty.
However, the situation becomes ethically fraught if the lawyer, while possessing such unfavorable evidence, actively makes factual assertions to the court or opposing party that are directly contradicted by that evidence. This could be construed as misleading the court or engaging in improper litigation tactics, thus infringing upon the broader principles of fairness and truthfulness inherent in shinjitsu-gimu as a constraint on conduct.
This scenario often presents a "difficult question" (muzukashii mondai) with no easy resolution, requiring a careful balancing of duties. The lawyer must avoid actively deceiving the court but is also bound by duties to the client. Often, the strategy might involve framing arguments carefully, focusing on weaknesses in the opponent's case, or advising the client on the risks of non-disclosure if discovery requests are made.

"Shinjitsu-Gimu" Beyond the Courtroom

While the formal shinjitsu-gimu is most acutely felt in the context of court proceedings, the underlying principle of respecting truth and acting with integrity extends to a lawyer's conduct outside of litigation, such as in negotiations. Although the rules may be less formally defined here, Article 5 of the Basic Rules of Professional Conduct (requiring lawyers to respect truth, act in good faith, and perform duties sincerely and fairly) still applies. A lawyer should not, for example, make knowingly false statements of material fact to a third party during negotiations. This aligns with the lawyer's public mission and the need to maintain trust in the legal profession. For a comparative perspective, this resonates with principles like those found in ABA Model Rule 4.1 (Truthfulness in Statements to Others).

Comparison with U.S. Ethical Standards

The Japanese approach to shinjitsu-gimu, particularly its emphasis on "subjective truth" and its careful balancing with duties of confidentiality and loyalty, presents both similarities and differences when compared to U.S. ethical standards.

Candor Toward the Tribunal: ABA Model Rule 3.3 requires lawyers to exhibit candor toward the tribunal. This includes not knowingly making false statements of fact or law to a tribunal, or failing to correct a false statement of material fact or law previously made. If a lawyer knows that their client intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal. This can sometimes create a more direct obligation to correct falsehoods than might be readily apparent under the Japanese framework, where client confidentiality is often a very strong counterweight.
Truthfulness to Others: ABA Model Rule 4.1 prohibits lawyers from knowingly making false statements of material fact or law to a third person. This is broadly similar to the expectation of truthfulness for Japanese lawyers in out-of-court contexts.
FRCP Rule 11: In U.S. federal civil litigation, Rule 11 of the Federal Rules of Civil Procedure requires that by presenting a pleading, motion, or other paper, an attorney certifies that to the best of their knowledge, information, and belief, formed after a reasonable inquiry, the factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. This places a burden of reasonable inquiry on the attorney.

While both systems strive for truth and fairness, the specific rules and the emphasis placed on different duties (e.g., confidentiality versus candor to the court) can lead to different approaches in practice. The Japanese system appears to place a very high premium on maintaining client trust through confidentiality, sometimes leading to more indirect methods of addressing client falsehoods (such as withdrawal) rather than direct disclosure, especially in civil matters.

Conclusion

The shinjitsu-gimu for Japanese lawyers is a vital ethical principle that underscores their commitment to the integrity of the legal process. It is not a simplistic command to reveal all truths at all costs, but rather a nuanced duty to respect truth, grounded in what the lawyer, through diligent and professional assessment, believes to be true. In civil litigation, this duty constantly interacts with, and is often constrained by, the equally important duties of loyalty and confidentiality owed to the client.

Navigating these intersecting obligations requires Japanese lawyers to exercise sophisticated professional judgment, particularly when a client's instructions or information appear to conflict with the lawyer's understanding of the truth. The resolution of such dilemmas often involves robust client counseling, a careful consideration of ethical boundaries, and, in some instances, the difficult decision to withdraw from representation to uphold both their duties to the client and their responsibilities to the legal system as a whole. It is a testament to the complexity of ethical lawyering in any jurisdiction.