Commonly known as
gaiben,
gaikokuhô jimu bengoshi (外国法事務弁護士) are "foreign law office
barristers"—attorneys from foreign countries who are permitted to help
Japanese clients with their foreign legal problems.
A brief history of gaiben
Japan's modern legal system (a knockoff of Germany's) was set up in the late 1860s and early 1870s. Barristers were not seriously regulated in Japan until after the Meiji Constitution was passed. In 1893, the Diet passed its first act regulating the bar, and set up examinations for qualification to practice criminal and civil law.
After World War II, the Japanese government made the system a bit more byzantine. The Courts Act of 1947 set up an institution called the Legal Research and Training Institute, where all law students would have to go if they wished to eventually litigate cases in court. LRTI's entrance exam soon became one of the most difficult entrance exams in the world, with a two percent pass rate. Most people nowadays have to take it three or four times in order to pass, and they are still the exception: three-fourths of those who take the exam never pass it at all.
Meanwhile, lawyers from other countries were plying their trade in Tokyo and Yokohama. There were only a handful of foreign lawyers in Japan before the 1950s, operating under a special provision of the Attorneys Act which allowed them to practice as "quasi-members" (junkaiin) of the Japan Bar Association. If they were able to demonstrate an adequate knowledge of Japanese law before the Supreme Court of Japan, they could be admitted as quasi-members with all the rights and privileges of regular Japanese barristers. If they only wanted to practice foreign law, they could simply apply to the local bar association.
In 1955, this regime was shut down. At that time, there were two individuals (both British) who had received Supreme Court permission to practice law, and about seventy (mostly American) who had received local permission to practice foreign law. These lawyers were allowed to continue their work in Japan, but new lawyers were not allowed to come in and practice.
There was a catch, though: solicitors, legally-trained individuals who give advice but do not argue cases in court, were not regulated. Many foreign companies and law firms got around the 1955 ban by importing "technical specialists" in legal matters. Japanese lawyers, along with foreign lawyers grandfathered in from the old system, protested this activity and asked the government to do something about it.
The government did something about it: they started denying visas to foreign lawyers attempting to move to Japan. This worked, because the Japanese visa process was not reviewable, and the Ministry of Justice was responsible for both regulating the legal profession and issuing visas.
There were only two ways to skirt the ban. The first way was to get a degree from a Japanese university and pass the LRTI exam. Only one Westerner, an American named Douglas Freeman, has ever done this, but Chinese and Korean nationals do it from time to time as well. The second way was to work as a "trainee" in a Japanese firm, usually a job for a person who had just been admitted to the bar at home, as it was mostly a job of research and copyediting for Japanese lawyers and the foreign holdovers.
By the 1980s, anti-Japanese sentiment was rising in the United States, and the U.S. government was looking for trade barriers to bring up in its attempts to open the Japanese market. One barrier it cited, in 1982, was the ban on foreign attorneys. Seeking to pacify the United States, the Diet passed a law in 1986 that allowed foreign attorneys to move to Japan once more: thus the gaiben was born.
How to become a gaiben
There are several prerequisites to becoming a gaiben. The most obvious ones are a law degree and admission to the bar in one's own country.
In addition to this requirement, gaiben must also have at least three years (formerly five years) of experience practicing law in their home country. This drew the ire of many foreign lawyers who had worked as "trainees" in Japan for long periods of time: the Japanese government threw them a small bone by letting them count one year (formerly two years) of work experience in Japan toward their total.
There's also a reciprocity requirement, which isn't as thorny as it used to be. In the old days, gaiben had to be admitted to the bar in a jurisdiction that would allow Japan-trained lawyers to gain admission to the bar. Most U.S. states require a JD degree from an American law school as a prerequisite to bar admission: since these states wouldn't let Japanese lawyers in, Japan refused to let their lawyers in. On the other hand, lawyers from New York, California, Hawaii, Michigan and the District of Columbia, which allow foreign lawyers to join the bar, could get admission as gaiben. The current law provides automatic reciprocity for anyone from a WTO member country, which means that lawyers from any state in the U.S. can now obtain the qualification.
Once a potential gaiben has their materials together, they have to apply to a 13-member screening committee of the Federation of Bar Associations, which will ultimately decide whether the plucky young foreigner can come in or not.
As hard as this process might sound, it is infinitely easier to become a gaiben than it is to become a barrister in Japan. But there's a catch—in fact, there are multiple catches.
What gaiben can and can't do
Gaiben can only give advice pertaining to the law of their home country. Americans, Canadians, and Australians are further restricted to giving advice pertaining to the law of their home state or territory (as well as the pertinent federal law). In order to give advice on another jurisdiction's law, they have to apply to the Ministry of Justice for permission.
In many cases, gaiben are required to work alongside Japanese lawyers. They cannot draft legal documents without a Japanese barrister's assistance, and they cannot represent Japanese clients in intrastate matters or probate matters without a barrister looking over their shoulder.
Gaiben are allowed only one office, and they are subject to the regulations of the local bar association wherever that office is located. Until 2005, they were prohibited from employing Japanese barristers in their own office, but that restriction was lifted and the two groups are now fairly free to collude in the practice of international law.
Gaiben in practice
Exactly what this qualification means is subject to interpretation. Many foreign lawyers work in Tokyo without any gaiben qualification. Some firms actively discourage it because it requires the firm to pay bar association fees of 50,000 yen per month. Others—particularly Japanese firms—will only take gaiben, or require the qualification of all foreign partners. Some foreign firms keep a couple of gaiben in their office as coverage just in case the law is enforced in the future; other firms don't care at all.
Sources
- Special Measures Law Concerning The Handling Of Legal Business By Foreign Lawyers (Law No. 91 of 1989 and amendments), http://www.moj.go.jp/ENGLISH/FL/fl-01.html
- Ramseyer and Nakazato, Japanese Law: An Economic Approach
- Communications with Japan Federation of Bar Associations
- Personal experience