Lawyers’ livelihoods to get needier

October 18th, 2010 by Philip Brasor & Masako Tsubuku

JFBA Hall in Hibiya: Not so exclusive any more

JFBA Hall in Hibiya: Not so exclusive any more

Six years ago when the Liberal Democratic Party overhauled the legal system and established the lay judge system, the revisions also included measures to increase the number of practicing lawyers in Japan by changing the juridical education and certification systems. Logically, that would mean allowing more people who took the bar examination to pass. The aim was an extra 3,000 law professionals entering the market each year, and though this target hasn’t been achieved on a regular basis (2,074 passed the test this year), the increase in the number of lawyers has had a big effect on incomes.

There were about 17,000 lawyers in Japan in 2000, and by 2008 the number had increased to more than 25,000. The government estimates that this number will double by 2018. Consequently, according to the Ministry of Health, Labor and Welfare, five years ago, before the influx of new blood was felt in the marketplace, the average attorney made between ¥16 and ¥20 million a year. Last year, the average attorney income had dropped to ¥8 million. No wonder you see so many lawyers these days moonlighting as TV talent.

Nevertheless, Japan still lags behind the United States and other countries in the number of lawyers it produces, and it’s often said that the Japanese are not a litigious people. That may be true, but another thing that’s true is that people at the bottom and on the margins of society have scarcer access to legal services than do the equivalent class of people in the U.S. and Europe, where there is at least a semblance of legal aid.

The Japanese government sets aside ¥20 billion a year to provide legal help to those who need it but can’t afford it. The problem is that people who receive these funds have to pay it back. But, more significantly, legal facilities just aren’t available to a lot of people. About 40 percent of all the lawyers in Japan work in Tokyo or Osaka, and 85 percent of Japanese municipalities have no resident lawyers at all.

This situation may get worse. Starting next month, another facet of the LDP overhaul will go into effect. Juridical interns will no longer receive salaries from the government. Instead, they can ask for loans to tide them over until their internship is over and they enter the actual work force. People who pass the bar exam do at least a one-year internship under the auspices of the Supreme Court, learning the ropes, so to speak. After that, they decide which occupation they want to pursue: judge, prosecutor, or attorney. Judges and prosecutors work in the public sector, starting out as lowly assistants, and are thus subject to the same pay schedules as civil servants. Private sector attorneys’ pay is less assured, and now that they will have loans to pay off (in addition to whatever loans they took out as students) they are more likely to opt for positions that pay well right off the bat, and those positions usually don’t involve helping people in need or living in the sticks.

This issue has prompted the ruling Democratic Party of Japan to rethink the loan system, and there is talk that they may try to change the law again so as to retain salaries for interns. Many members of the DPJ, including the “shadow prime minister,” Chief Cabinet Secretary Yoshito Sengoku, are lawyers, and the Japan Federation of Bar Associations has lobbied the government to bring back the salary system, saying that removing it means that only rich people will be able to afford to become lawyers.

Of the 1,587 people who will enter the internship program next month (not everyone who passes the bar becomes an intern the same year), about 500 did not apply for loans, meaning that they will live off their own means. The LDP, which passed the law, will, of course, fight against its reversal. In their favor is the fact that six years ago the DPJ didn’t object to this part of the revision at all.

But there are other arguments against going back to the salary system, some from within the legal community itself. If the purpose of producing more lawyers is to make legal aid more available to a wider range of people, then the internship program should be made more flexible. Would-be lawyers who were interested in taking up practice in rural areas or specializing in defending criminals and poorer clients could have their loan repayments waived after completeing their internships. Those who go the corporate route or plan to enter into lucrative tort work or consumer lawsuits would have to pay their loans back. And those who become TV talent, too.

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