Recent Developments Regarding Attorney-client Privilege in Japan

Author: Yoshihiko Matake

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Publisher: Nagashima Ohno & Tsunematsu

Journal / Book: NO&T Japan Legal Update No.19 (September, 2019)

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*Please note that this newsletter is for informational purposes only and does not constitute legal advice. In addition, it is based on information as of its date of publication and does not reflect information after such date. In particular, please also note that preliminary reports in this newsletter may differ from current interpretations and practice depending on the nature of the report.

I. Introduction
If a client asks whether conversations with a Japanese lawyer regarding legal advice will be protected by attorney‐client privilege in a Japanese court, the short answer is no, which is often surprising to non‐Japanese clients (especially those from common law jurisdictions). According to the OECD, Japan is one of only three OECD jurisdictions that do not afford attorney‐client privilege. The absence of attorney‐client privilege requires foreign companies to be acutely aware of the differing treatment of sensitive communication in Japan and in their home jurisdiction. It may also pose a greater challenge to Japanese companies in the context of international disputes and/or investigations. This article addresses the recent discussions about attorney‐client privilege in relation to investigations of corporate misconduct in Japan and the new regime of attorney client privilege being developed.

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