Cases Where Lawyers Cannot Accept Appointments in Online Defamation and Dual Representation

In another article on our site titled “Cases and Reasons for a Lawyer’s Refusal to Accept a Case,” we discussed the main scenarios in which a lawyer might decline a request. These include:

• The case is outside of their area of expertise
• The risk of financial collapse
• There is no prospect of winning the case
• There is a conflict of interest
• Trust issues with the client

In this article, we would like to delve deeper into the issue of “conflict of interest” and provide an explanation about “dual representation.”

Conflict of Interest and Self-Contracting/Dual Agency

“Conflict of interest” refers to a situation where the interests of the parties involved clash. In other words, it’s a situation where one party’s gain results in the other party’s loss.

“Self-contracting” and “dual agency” are types of conflict of interest in a broader sense. Regarding this, Article 108 of the Japanese Civil Code (民法第108条) stipulates as follows:

(Self-Contracting and Dual Agency, etc.)
Japanese Civil Code Article 108
1. An act performed as the agent of the other party or as the agent of both parties in the same legal act shall be deemed to have been performed by a person without authority. However, this does not apply to the performance of obligations and acts that the principal has previously approved.
2. In addition to what is stipulated in the main clause of the preceding paragraph, an act in which the interests of the agent and the principal conflict shall be deemed to have been performed by a person without authority. However, this does not apply to acts that the principal has previously approved.

About Self-Contracts

The term “as an agent of the other party” in Article 108 of the Japanese Civil Code refers to “self-contracts”. A self-contract is a legal act (such as a contract) where the same person acts as both the agent of the party and the agent of the other party, effectively making a contract with themselves. For example, let’s say I am buying a used car from Mr. A. In this case, if I, the buyer, become the agent of Mr. A, the seller, and express the intention to sell the car to myself on behalf of Mr. A, this is a “self-contract”. If I contract to buy a car that could be sold to a dealer for 2 million yen for 1 million yen, I benefit, but Mr. A’s interests are unfairly harmed. Because of this, it is generally not permitted to act as an agent for the other party. Such actions are considered “acts performed by a person without power of attorney”, and are not recognized as agency contracts.

However, it is possible to act as an agent for the other party in the following two cases: ① when only performing a debt obligation, and ② when the principal has given prior consent. The “debt” in ① refers to a debt that has come due and is undisputed by the parties. The performance of a debt is merely the settlement of an already established creditor-debtor relationship, so there is no negotiation and it is believed that no new situation that harms the principal’s interests will occur.

What is Dual Agency?

In the Japanese Civil Code (民法), Article 108 mentions “becoming an agent for both parties”, which is referred to as “dual agency”. For instance, let’s say Mr. A and Mr. B are entering into a contract for the sale of a used car owned by Mr. A. In this case, both Mr. A and Mr. B express their desire to appoint Mr. C as their agent. As a result, Mr. C ends up representing both the seller, Mr. A, and the buyer, Mr. B. Mr. C, finding the negotiation process tedious, tells Mr. A something vague and concludes the negotiation at a significantly low price, earning the gratitude of Mr. B, with whom he is likely to continue dealing in the future.

As demonstrated, unrestricted acceptance of “dual agency” could potentially harm the interests of one of the parties involved. Therefore, as a general rule, acting as an agent for both parties is not permitted. Such actions are considered as if they were performed by someone without the power of representation, and thus, are not recognized as agency contracts.

However, similar to “self-contracting”, there are exceptions where one can act as an agent for both parties: ① when only performing the obligation, and ② when there is consent from both parties involved.

Article 108, Paragraph 2 of the Japanese Civil Code expands the rules to cover “conflict of interest” actions that do not fall under “self-contracting” or “dual agency”. As stated in the text, “self-contracting” and “dual agency” apply to the “same legal act”, whereas “conflict of interest” actions can apply to different legal acts.

For example, if you are or have been involved in a lawsuit for Mr. A, you cannot accept a lawsuit from Mr. B against Mr. A. If Mr. A’s secrets are known and used to initiate a lawsuit, it would cause trouble for Mr. A.

Attorneys and Dual Representation

Article 108 of the Japanese Civil Code applies to a wide range of people, including tax accountants and real estate professionals. However, both the Japanese Attorney Act and the Basic Rules of Attorney Duties prohibit attorneys from dual representation.

Japanese Attorney Act Article 25 (Cases where duties cannot be performed)
Attorneys shall not perform their duties in the following cases. However, this does not apply to the cases listed in the third and ninth items if the client of the case in question has agreed.
1. Cases where the attorney has accepted the consultation of the opposing party or accepted their request.
Basic Rules of Attorney Duties Article 27 (Cases where duties cannot be performed)
Attorneys shall not perform their duties in any of the following cases. However, this does not apply to the cases listed in the third item if the client of the case in question has agreed.
1. Cases where the attorney has accepted the consultation of the opposing party or accepted their request.

Although the prohibition is stated in almost the same wording in both laws, the phrase “accepting the consultation of the opposing party” in the text refers to providing specific answers in legal consultations from clients. In such cases, or when the attorney has already accepted the case of the opposing party, the attorney cannot accept the case.

The Supreme Court of Japan has stated:

When an attorney receives a consultation on a legal matter from a client, it should be considered that it does not fall under the so-called “supporting by accepting the consultation of the opposing party” in the right law article, such as when the attorney refuses the consultation for some reason in the middle or receives the consultation until the end but does not express any opinion on it. However, if it reaches the stage of instructing specific legal measures as a result of hearing the circumstances in response to the consultation on a legal matter as listed in the above (2), it is appropriate to generally recognize it as falling under the so-called “supporting” in the right law article. This is because it is nothing but expressing an opinion that the case should be favorably resolved by adopting that method as a countermeasure, usually when an attorney instructs a specific legal measure in response to a client’s consultation.

Supreme Court of Japan, June 14, 1958 (Showa 33) Judgment

As indicated in the judgment.

And this prohibition of dual representation, as mentioned in “Cases and Reasons for Attorneys Refusing Representation,” applies even to attorneys belonging to the same law firm (Basic Rules of Attorney Duties Article 57). For example, if an attorney at our Monolith Law Office has already accepted a consultation from Mr. A, it would be a legal conflict of interest, and it would be prohibited by law for our representative attorney, Attorney Kawase, to accept a consultation from Mr. B, who is in dispute with Mr. A.

https://monolith.law/corporate/refused-request-by-lawyer[ja]

Monolith Law Office and Dual Representation

Each lawyer and law firm has their own areas of legal expertise. It is rare to find a lawyer or law firm that can handle all legal issues. Therefore, every lawyer and law firm may decline to take on cases in areas where they have little experience. This is because a more appropriate resolution may be possible. For example, our firm, Monolith Law Office, specializes in IT and Internet business law. Therefore, if we are asked to consult on divorce or traffic accident cases, there is a high likelihood that we can only provide general advice. It may be more beneficial for the client to consult with a lawyer or law firm that specializes in divorce or traffic accident cases, as they may be able to achieve a more desirable outcome.

Reference: https://monolith.law/practices[ja]

As such, each lawyer and law firm has their own areas of legal expertise. To avoid dual representation when requests overlap, we carefully respond according to each field.

For example, in the case of a law firm or lawyer who receives many consultation requests for divorce or gender-related issues, they would first confirm the ‘name of the spouse or the other party in the dispute’. In the case of divorce, they should not accept a consultation from a wife who is in dispute with her husband, or act as the wife’s representative while simultaneously accepting a divorce consultation from the husband. Similarly, they should not accept a consultation from a woman who is being sued for adultery damages by the wife, or act as the woman’s representative while simultaneously acting as the representative of the wife who is claiming damages, or accepting legal consultations.

Defending Defamation Perpetrators and Dual Representation

Our firm, known for its expertise in managing online reputational damage, has been entrusted by numerous companies and individuals to handle the removal of defamatory articles and identification of posters. Therefore, we do handle the defense of defamation perpetrators, but in such cases, there may be instances where we cannot accept the case due to dual representation. For example, if you contact us via our email form, there is a possibility that we may already be representing the victim in the case.

Therefore, if you are a perpetrator, we kindly ask that you do not disclose your real name when contacting us via email or phone, but instead provide us with the ‘name of the victim’s company or individual’. Only if the victim is not a company or individual that we are already representing, will we consider offering ‘legal consultation’.

Furthermore, even if the case is one we have not yet been entrusted with, there may be a possibility that the victim will seek our services in the future. For our firm, accepting a legal consultation from the perpetrator means that we will not be able to accept a request from the victim regarding the same case in the future. Therefore, we regret to inform you that we cannot casually accept ‘legal consultations’ in cases of defamation defense.

For more information on this, please click on ‘Defending Defamation Perpetrators’ under ‘Other Information’ on our website, and read ‘The Specificity and Constraints of Defending the Perpetrator’ and ‘Two Points to Note Regarding the Defense of the Perpetrator’.