Man Without Qualities

Thursday, February 21, 2002

Would That Which We Call a “Lawyer” …?

For years, many heads – often what seem to be the wisest, grayest heads - have shaken at the observation that Japan has proportionately far fewer lawyers than the United States has. Derek Bok (former President of Harvard and former Dean of Harvard Law School) seems to have given this concern a big boost in a widely reported speech he gave years back. Many people have used the observation for many purposes. At one time, this supposed scarcity of lawyers – and a corresponding abundance of engineers – were cited as a sign of Japanese strength. Now that an increasing number of Japan observers are concerned that the country may have developed the national economic equivalent of Lou Gerhig’s disease (see, for example various Japan-related Lagniappe posts), it is perhaps worth revisiting the issue.

Is the observation correct? Well, as Churchill would probably have rather died than say: "Japan is a mystery inside a misleading bank accounting entry, served in an interminable tea ceremony." Or, put another way, it depends a lot on what one means by a “lawyer.”

In Japan, as in many places in the world, law is an undergraduate degree. The United States is a major exception. But, for example, most practicing attorneys in Great Britain hold only undergraduate law degrees. They receive further training with law firms.

The Japanese graduate a roughly proportional number of people with law degrees as the United States does (undergraduate degrees in the case of Japan, graduate degrees in the case of the United States). But a large number of those Japanese law students have traditionally entered corporations directly out of college, where they are further trained and function as "in house" attorneys. They draft contracts, conduct legal negotiations, give legal advice to company executives and provide many other legal services.

But unlike the United States, in Japan such in-house company legal operatives aren’t required to, and don’t, ever join the official professional bar. And such “in-house” attorneys are therefore not included in most international comparative counts of attorneys. These are the counts they lie at the base of President Bok’s observation.

One might view the Japanese system and the international counts as unintentionally creating the illusion that there are fewer lawyers in Japan. It’s a kind of tea ceremony. Those “in-house” Japanese lawyers are “real” lawyers, too. If they were added to the counts, Japan and the United States would have roughly proportionately many lawyers.

Are these “in-house” legal operative “real” lawyers? That’s hard to say. I would not want to argue that British solicitors – among the cleverest and most competent providers of legal services in the world - are not "real" attorneys, merely because they work from undergraduate law degrees supplemented by “in-house” training in law firms. Japanese corporations seem to do quite well at training their representatives. Nor would I want to have to argue that an American “in-house” lawyer who gradually assumes more and more “business” functions as he or she progresses through a corporate career does not remain a “real” lawyer (or, as one of them described himself to me, a “recovering lawyer”). So I wouldn’t want to characterize a Japanese corporate legal operative as not a “real” lawyer just because he (almost always “he”) provides lots of business services, too. Beyond that...?

What is clear is that the official professional bar in Japan is proportionately much smaller than its counterpart in the United States. The Japanese admit fewer than 1,000 people a year to the bar. And only members of the bar may appear as legal representatives in the Japanese courts.

Many Japanese people DO have a lot more trouble suing in court. And that seems to be correlated to the scarcity of members of the bar. So, in Japan, if one’s daughter, say, is run over by a car, one is likely to hire a GANGSTER to extort compensation from the perpetrator. If he won't pay, your gangster maims him or his property or family. The Japanese present this to the world as a "less confrontational" system. "Asian values." I personally find a system in which gangsters directly compete with attorneys to have a certain naked charm.

Curiously, there now appears to be some sense “in the air” in Japan (at least among some Japanese legal academics) that there are now just not enough “official” lawyers, and that this is a drag on the Japanese economy. There is even word that the Japanese government may want to vastly increase the number of members of the official bar to address this “problem.” As with so many things involving Japan, all of this is difficult to evaluate – even to determine its truth.

But given that Japan and the United States have approximately proportionately as many people providing legal services, it is hard to believe that a scarcity of “official” litigators is exerting any significant drag on the Japanese economy – or that the Japanese government could believe such a thing. But that doesn’t mean the government doesn’t have its own plans.

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