When Japanese Lawyers "Jinin" (Withdraw): Can Your Counsel Resign Mid-Case and What Are the Implications for Your Business?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

The relationship between a client and their lawyer, known in Japan as a bengoshi, is fundamentally built on trust and a shared understanding of the objectives. In an ideal scenario, this relationship continues harmoniously until the legal matter is resolved. However, circumstances can arise where a lawyer may find it necessary or ethically mandated to withdraw from representing a client mid-case, a process referred to as jinin (辞任). For businesses, especially those involved in complex or protracted legal affairs, such a withdrawal can be disruptive. Understanding the grounds upon which Japanese lawyers can resign, the procedures involved, and their ongoing obligations is crucial.

The lawyer-client relationship in Japan is typically characterized as a mandate agreement (inin keiyaku) or quasi-mandate under the Civil Code (民法). This type of agreement inherently relies on a high degree of mutual trust.

  • Civil Code Provisions: Generally, Article 651, Paragraph 1 of the Civil Code allows either party to a mandate agreement to terminate it at any time. However, Paragraph 2 of the same article introduces a critical caveat: if a party terminates the mandate at a time that is disadvantageous to the other party, the terminating party may be liable for damages, unless there were "unavoidable grounds" (yamu o enai jiyū) for the termination. This concept of "unavoidable grounds" or "justifiable cause" (seitō jiyū) is central to a lawyer's ability to withdraw without incurring liability.
  • Ethical Keystone – Breakdown of Trust: The Basic Rules of Professional Conduct for Lawyers (弁護士職務基本規程) provide more specific ethical guidance. Article 43 is paramount: "If the relationship of trust (shinrai kankei) with the client has been lost and its recovery is difficult, the lawyer must explain this to the client and take appropriate measures such as resignation (jinin)." This highlights that an irreparable breakdown of trust is a primary ethical justification for a lawyer initiating withdrawal.

It's important to distinguish a mid-case withdrawal from the natural conclusion of a specific stage of representation. In Japanese civil procedure, legal representation is often viewed on a per-instance basis (e.g., first instance court, appellate court), known as sōkyū dairi no gensoku (審級代理の原則 – principle of representation for each court instance). Thus, if a lawyer's engagement was specifically for a first-instance trial, completing that stage and not continuing to an appeal might be considered the end of that particular mandate, rather than a disruptive mid-case withdrawal.

While lawyers in Japan generally have the freedom to decline an engagement initially (with some exceptions for court or bar-assigned appointments), the freedom to withdraw once a case has been accepted is more constrained due to the potential prejudice to a client who has come to rely on their counsel.

Common Grounds for Lawyer-Initiated Withdrawal

Japanese lawyers may consider or be ethically required to withdraw from a case under several circumstances:

  1. Irreparable Breakdown of the Trust Relationship (Basic Rules Art. 43): This is the most frequently cited ethical ground. It can manifest in various ways:
    • Client Misconduct: If a client provides falsified evidence or consistently gives false information to the lawyer, and refuses to rectify the situation or agree on an ethical strategy upon discovery.
    • Persistent Failure to Cooperate: If a client repeatedly fails to provide necessary documents or information, does not attend crucial meetings, or becomes unreachable, thereby hindering the lawyer's ability to effectively represent them. Withdrawal on this basis usually follows significant efforts by the lawyer to re-establish communication and cooperation.
  2. Irreconcilable Differences on Fundamental Strategy or Legitimate Objectives:
    • A lawyer is ethically bound to pursue a client's legitimate interests (Basic Rules Art. 21) and to provide candid advice. If a client, despite the lawyer's thorough explanation and counsel, insists on a course of action that the lawyer reasonably believes is legally unviable, frivolous, significantly detrimental to their actual legitimate interests, or would involve the lawyer in unethical conduct, an impasse may be reached.
    • The lawyer must make every effort to explain the risks and persuade the client towards a more appropriate path. However, if the disagreement is fundamental and undermines the lawyer's ability to act in what they professionally assess to be the client's true legitimate interest, and the trust relationship consequently breaks down, withdrawal may become necessary. Withdrawing just before a critical deadline, such as an impending judgment, is generally viewed as highly problematic and should be avoided if at all possible.
  3. Emergence of Unmanageable Conflicts of Interest:
    • If, during the course of representation, an unwaivable conflict of interest arises (e.g., between multiple clients jointly represented in the same matter whose interests later directly diverge – Basic Rules Art. 42), the lawyer is typically required to withdraw from representing all affected clients.
    • Similarly, if a conflict is discovered post-engagement that is imputed to the lawyer or their entire firm (e.g., due to another firm member's prior involvement with an opposing party – Basic Rules Art. 58), withdrawal is necessary unless specific exceptions, such as the implementation of an effective ethical screen and/or obtaining required client consents (where permissible), can resolve the conflict.
  4. Client's Insistence on Illegal or Unethical Conduct:
    • If a client demands that the lawyer participate in or facilitate actions that are illegal, fraudulent, or violate the lawyer's ethical obligations (e.g., suborning perjury, knowingly presenting false documents to a court), the lawyer must refuse and may be required to withdraw if the client persists.
  5. Persistent Non-Payment of Agreed-Upon Fees:
    • While a sensitive issue, a client's significant and unjustified failure to pay agreed-upon legal fees, especially retainers or essential upfront costs necessary for the progression of the case, can undermine the lawyer-client relationship and may constitute "unavoidable grounds" for withdrawal. However, lawyers are expected to handle this situation with care, typically by providing the client with clear advance notice of their intention to withdraw if payment is not made and by endeavoring to resolve the issue before taking such a step. The (now abolished) JFBA Fee Standards previously provided that lawyers could suspend or cease work if fees were not paid, but only after notifying the client. Any withdrawal must still be managed to avoid undue prejudice to the client, particularly concerning imminent deadlines.

Lawyer's Duties Upon Withdrawal or Termination

Even when withdrawal is justified, Japanese lawyers have significant ongoing ethical and legal obligations to protect the client's interests:

  1. Clear and Timely Notification to the Client: The lawyer must clearly explain to the client the reasons for withdrawal (unless doing so would violate a duty of confidentiality to another party in rare conflict scenarios).
  2. Minimizing Prejudice to the Client: This is a paramount concern. The lawyer must take reasonable steps to avoid foreseeable prejudice to the client's rights and interests. This includes:
    • Avoiding withdrawal at critical junctures if feasible without breaching other overriding duties.
    • Duty to take "urgent measures" (ōkyū shobun gimu, 応急処分義務): Article 654 of the Civil Code implies that if termination occurs when urgent circumstances exist, the lawyer may need to take necessary emergency actions to prevent immediate, irreparable harm until the client can secure new counsel or manage the matter. This might involve, for example, filing for an extension of a crucial deadline if withdrawal occurs immediately before it.
  3. Reporting on Case Status and Providing Advice (Basic Rules Art. 44): Upon termination, the lawyer must inform the client of the current status of their case, any results achieved, and provide necessary legal advice regarding the client's next steps. This is crucial for enabling the client to protect their interests, such as understanding appeal deadlines or the need to find successor counsel.
  4. Return of Client Property and Settlement of Accounts (Basic Rules Art. 45): The lawyer must promptly return all client papers, documents, evidence, and any unearned fees or client funds held in trust, after a final and clear accounting of services rendered and expenses incurred. It is generally considered improper in Japan for a lawyer to assert a retaining lien over essential client files as a means of securing unpaid fees; such actions can lead to serious disputes.
  5. Formal Withdrawal from Proceedings: If the matter is in litigation or other formal proceedings, the lawyer must take the necessary formal steps to withdraw as counsel of record, notifying the court and opposing counsel.
  6. Continuing Duty of Confidentiality: The lawyer's duty to protect the client's confidential information survives the termination of the lawyer-client relationship and continues indefinitely.
  7. Cooperation with Successor Counsel: While not extensively detailed in the referenced chapter of the PDF, professional courtesy and the underlying duty to protect client interests generally entail reasonable cooperation with any new lawyer the client engages.
  8. Dispute Resolution (Basic Rules Art. 26): If disputes arise between the lawyer and client concerning the withdrawal or related matters (such as fees), lawyers are encouraged to seek resolution through the dispute resolution (mediation) services offered by their local bar association.

Implications for Business Clients

For a business client, the mid-case withdrawal of their Japanese counsel can have several adverse consequences:

  • Disruption and Delays: Ongoing legal matters, transactions, or litigation can be significantly disrupted, leading to costly delays.
  • Additional Costs: The process of finding, vetting, and briefing new counsel inevitably incurs additional expense and diverts management time.
  • Potential Strategic Disadvantage: A change in legal representation during active litigation or negotiation can sometimes be perceived as a sign of weakness or internal issues by opposing parties or business partners.
  • Loss of Accumulated Knowledge: The withdrawing lawyer will have accumulated significant knowledge about the case; transferring this effectively to new counsel takes time and effort.

To mitigate these risks, businesses should:

  • Invest in a Strong Initial Relationship: Thorough due diligence when selecting counsel and fostering open communication from the outset can help prevent the types of misunderstandings or misalignments that might lead to a breakdown of trust.
  • Ensure Clarity in Engagement Agreements: A well-drafted inin keiyakusho that clearly outlines the scope of work, fee arrangements, and expectations for cooperation can preempt many potential sources of conflict. Provisions addressing termination and the settlement of fees upon premature termination are also important.
  • Fulfill Client Obligations: Businesses, as clients, also have a responsibility to cooperate with their counsel, provide necessary information in a timely manner, and meet their fee obligations as agreed.

Conclusion

While Japanese lawyers are permitted to withdraw from representation (jinin) under specific legal and ethical circumstances—primarily centered on an irreparable loss of the trust relationship, unmanageable ethical conflicts, or the client's insistence on improper conduct—it is generally viewed as a measure of last resort. The decision to withdraw is not taken lightly and is accompanied by significant professional obligations to protect the client's interests from undue prejudice during the transition.

For businesses operating in Japan, understanding the grounds for, and implications of, lawyer withdrawal is an important aspect of managing their legal affairs. Proactive communication, clearly defined engagement terms, and a commitment to a cooperative lawyer-client relationship are key to minimizing the risk of such disruptions and ensuring continuous, effective legal support.