Hiring a lawyer in Japan, and what to do if it all goes wrong

The Japan Times

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Hiring a lawyer in Japan, and what to do if it all goes wrong

BY

SPECIAL TO THE JAPAN TIMES

One of our readers wrote in about the negative experience he had with a lawyer in Japan:

Last year I contacted a lawyer at a foreign resident center in Osaka. My wife had signed a divorce paper and forced me from the house.

The lawyer said he would handle the case until the end for ¥100,000. I went to his office and he copied some papers and called my wife.

A year later he quit my case without notice and changed his firm. I went months without any communication from him and he didn’t accomplish anything.

Now my wife is trying to get me to go to arbitration because she says I left and needs help with my daughter.

What should the reader have done in this case?

Unfortunately, not all lawyers handle their cases responsibly. However, our reader also shouldn’t have waited for a matter of months before attempting to contact the lawyer. If a client doesn’t hear from their lawyer about their case for a certain period (for example, more than a month), they should contact the lawyer to find out what is going on.

It’s possible that a lawyer might not contact the client for a while if there are no notable developments in the case, but at the very least, it is important for the client to know what their lawyer is doing for them right now. If the lawyer does not respond to the inquiry satisfactorily, the client had better think about canceling their contract with the lawyer.

What can a client do if they have a disagreement with their lawyer?

When a client wants to cancel a contract with a lawyer, it is possible that the two sides won’t be able to reach an agreement on the terms of the cancelation — particularly on the issue of money.

Every local bar association has a grievance mediation committee (fungi chōtei iinkai) that clients can use to resolve issues involving lawyers. Of course, to prevent any trouble happening in the first place, it’s best to check any retaining contract thoroughly before signing it.

Regulations on remuneration of lawyers issued by the Japan Federation of Bar Associations (Nichibenren) stipulate that when a lawyer accepts legal affairs, he must prepare a retaining agreement that includes matters relating to lawyers’ remuneration. So, if your lawyer did not prepare a contract for you initially, you can request that they do after the fact.

What are the details of a lawyer’s remuneration? What is it based on?

Until 2004, the Japan Federation of Bar Associations set the level of lawyers’ fees. Nowadays, lawyers can decide their fees freely. However, a lot of lawyers still refer to the remuneration levels issued by Nichibenren previously. Checking these figures is one way to find out whether your lawyer’s fee is relatively expensive or not. (The old fees are in Japanese here: www.miyaben.jp/consultation/pdf/expenses_kijun.pdf.)

As for how lawyers are paid, usually they receive an initial sum when they start the case (the retainer fee) and another if they win the case (the success fee). Retainer fees are fixed according to the type of case, whereas the size of the success fee often depends on the result of the case. Other lawyers, however, calculate their fees by the hour. Before you sign a retaining contract, it’s important to check which system of payment applies in your lawyer’s case.

If you are looking for legal advice or want to retain a new lawyer, where should you go?

Local bar associations have legal counseling centers where you can book sessions with lawyers. The average counseling fee is ¥5,400 per 30 minutes.

Some local bar associations provide counseling for free or at cheaper prices. Sometimes free counseling is only available for those who have zero or low incomes. If you are in debt and wish to discuss your financial predicament, local bar associations will also offer you a session for free.

Also, if you would like to talk about a traffic accident, you can get legal advice at the Nichibenren Traffic Accident Consultation Center (Nichibenren Kotsujiko Sodan Senta) for free (for the first five sessions only).

If you meet certain financial conditions, you also can use the civil legal aid system provided by Hoterasu (the Japan Legal Support Center). The system was specifically set up for those who lack the financial resources to pay for a case.

In the event that you do qualify for free legal advice, these are limited to three sessions per case, after which you would have to pay. You also can ask for a loan to retain a lawyer for negotiation, litigation or any other court procedures. However, it’s worth bearing in mind that civil legal aid will only be granted for court proceedings if Hoterasu is convinced there is a possibility of winning the case.

Natsumi Fujii is an attorney with the Foreign nationals and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area (03-5979-2880; www.t-pblo.jp/fiss) FISS lawyers address readers’ queries once a month. Your questions and other comments: lifelines@japantimes.co.jp

Source:  “Hiring a lawyer in Japan, and what to do if it all goes wrong”, The Japan Times, 19 March 2017 

JT leading article (from Jan 2017): “Rules” on handing over a child

The Japan Times

Rules on handing over a child

Court rulings ordering a divorced parent to hand over a child to his or her former spouse are often ignored — largely because there are no specific procedures under the law governing enforcement of such a custody transfer. A revision of the relevant law is imperative to ensure that court decisions on child custody are enforced. There are two important points for consideration — creating a clear rule for the compulsory enforcement of a court order by a legally empowered official, and imposing financial penalties on the parties defying court orders to get them to comply. Either way, due consideration should be paid to the welfare of the children, including the potential psychological damage from the procedure.

In the absence of a specific legal procedure for custody transfers between divorced parents, the Civil Execution Law’s provision on the transfer of movable property is currently referred to in enforcing a court ruling ordering a divorced parent to hand over a child to the other party. But it would not stand to reason to treat children as if they were “property.”

In the case of international marriages, the compulsory execution of a court order on a custody transfer is possible under the 1980 Convention on the Civil Aspects of International Child Abduction, popularly known as the Hague Convention. As of November, 95 countries were parties to the convention, which Japan signed and ratified in 2014. A law setting domestic procedures needed to implement the convention has been enacted and put in force.

The law includes a detailed provision stating what an enforcement officer in charge of removing a child from a parent who abducted that child to Japan and handing that child over to the other parent should and should not do, including the need to try to persuade the abducting parent and asking for police assistance if necessary. The provision says an officer can use some form of power to restrain or make a parent who resists giving up the child comply, but prohibits the officer from using this power if it causes harmful effects on the child. The law says that if a court rules that a child must be moved back to his or her “state of habitual residence,” the parent who won the case can in principle ask for the decision to be executed by an enforcement officer after two weeks have passed. This rule leaves room for the disputing parents to agree on the transfer of the child in an amicable way without the involvement of an enforcement officer.

Last year, Justice Minister Katsutoshi Kaneda asked the Legislative Council, an advisory body, to look into revising the Civil Execution Law to set down specific procedures to enforce court decisions ordering the handover of children between divorced parents. Based on its recommendation, the government is expected to submit a bill for the revision to the Diet as early as next year.

Setting down the relevant procedures makes sense given what is happening to divorced parents and their children. In 2015, there were 97 cases in which divorced parents with parental prerogatives or the care and custody right over their children asked that their former spouses turn the children over to them, but the children were handed over in only 27 of the cases, according to the Supreme Court.

Merely setting the procedures for a compulsory execution of the court order — which would involve an enforcement officer stepping in to physically remove a child from one parent and hand him over to the other — may be too rigid and may not serve the intended purpose of the amendment. The procedures should include an indirect approach that may seem lukewarm but will eventually lead to the transfer of a child. One option would be to fine a parent who refuses to comply with the court and, to encourage compliance, the size of the fine would rise as long as the parent keeps refusing to obey the order.

Priority should be placed on the indirect approach so that the child handover can take place in a more amicable manner. But a mechanism should also be included that will trigger a compulsory enforcement if, for example, it’s suspected that a parent ordered to give up the child is seeking to dodge the ruling by continuing to make the payments. The law to implement the Hague Convention says that the removal of a child must be carried out when the child is together with the parent who took him or her to Japan, out of consideration for the psychological effects on the child. The advisory council should take into account how to minimize the risk of trauma on children in executing court rulings.

Source:  “Rules on handing over a child”, The Japan Times (leader), 26 January 2017 

The Economist article: Unhappily ever after

KATE BAGGOTT and her two children live in a tiny converted attic in a village near Frankfurt. Ms Baggott, who is Canadian, has a temporary residence permit and cannot work or receive benefits. The trio arrived in Germany in October, after a Canadian court order gave them a day’s notice to get on the plane. Ms Baggott’s ex-husband, a Canadian living in Germany, had revoked his permission for the children’s move to Canada after they had been there nearly a year, alleging “parental child abduction”. A German court has given Ms Baggott full custody, but she must stay until an appeal is over.

Such ordeals are becoming more common as the number of multi-national and footloose families grows. Across the European Union, for example, one in seven births is to a woman who is a foreign citizen. In London a whopping two-thirds of newborns in 2015 had at least one parent who was born abroad. In Denmark, Spain and Sweden more than a tenth of divorces end marriages in which at least one partner is a non-citizen.

The first question in a cross-border break-up is which country’s laws apply. When lots of money is at stake there is an incentive to “forum shop”. Some jurisdictions are friendlier to the richer partner. Germany and Sweden exclude assets owned before the marriage from any settlement. Ongoing financial support of one partner by the other is rare in France and Texas—and ruled out in another American state, Georgia, if the spouse seeking support was adulterous.

Under English law, by contrast, family fortunes are generally split evenly, including anything owned before the marriage. Prenuptial agreements, especially if drawn up by a lawyer representing both spouses, are often ignored. The wife of a Russian oligarch or a Malaysian tycoon can file for divorce in London if she can persuade a judge that she has sufficient links to England. A judge, says David Hodson, a family lawyer in London, might be presented with a list of items supporting her claim, which may be as trivial as which sports team the husband roots for, or where the family poodle gets a trim.

Across the European Union, until recently the rule has been that the courts of the country in which divorce papers are filed first gets to hear the case. The result was that couples often rushed to file rather than attempting to fix marital problems. But in some countries that is changing: last year Estonia became the 17th EU country since 2010 to sign an agreement known as Rome III that specifies how to decide which country’s law applies (usually the couple’s most recent country of residence, unless they agree otherwise). Though the deal brings welcome clarity, it can mean that courts in one country have to apply another country’s unfamiliar laws. And one spouse may be tricked or bullied into agreeing to a divorce under the rules that best suit the other.

The bitterest battles, though, are about children, not money. Approaches to custody vary wildly from place to place. Getting children back if an ex-partner has taken them abroad can be impossible. And when a cross-border marriage ends, one partner’s right to stay in the country where the couple lived may end, too, if it depended on the other’s nationality or visa.

Treasures of the heart

Under the Hague Abduction Convention, a treaty signed by 95 countries, decisions about custody and relocation fall to courts in the child’s country of “habitual residence”. If one parent takes a child abroad without the other’s consent or a court order, that counts as child abduction. The destination country must arrange the child’s return.

But plenty of countries have not signed, including Egypt, India and Nigeria. They can be havens for abducting parents. Around 1,800 children are abducted from EU countries each year. More than 600 were taken from America in 2015; about 500 abductions to America are reported to the country’s authorities each year.

Some countries, including Australia and New Zealand, often regard themselves as a child’s habitual residence from the moment the child arrives. The EU sets the threshold at three months. America differs from state to state: six months’ residence is usually what counts. GlobalARRK, a British charity that helps parents like Ms Baggott, is campaigning for information on such rules to be included among the documents issued to families for their move abroad. It also lobbies for a standard threshold of one year for habitual residence and advises parents to sign a pre-move contract stating that the child can go home at any time. Though such contracts are not watertight, they would at least alert parents to the issue.

Britain is comparatively generous to foreign parents who seek a child’s return: it provides help with legal advice and translation. But plenty of countries do little or nothing. Family judges in many places favour their compatriots, though they may dress up their decisions as being in the child’s interests. Parents who can no longer pay their way through foreign courts may never see their children again.

Some parents do not realise they are committing a crime when they take the children abroad, says Alison Shalaby of Reunite, a British charity that supports families involved in cross-border custody disputes. Even the authorities may not know the law. Michael, whose former partner took their children from Britain to France in 2015, was told by police that no crime had been committed. After he arranged for Reunite to brief them, it took more than five months to get a French court order for the children’s return.

Other countries are slower still, often because there are no designated judges familiar with international laws. Over a third of abductions from America to Brazil, for example, drag on for at least 18 months. When a case is eventually heard the children may be well settled, and the judge reluctant to order their return.

A renewed push is under way to cut the number of child abductions, and to resolve cases quickly. The EU is considering setting an 18-week deadline for the completion of all return proceedings and making the process cheaper by abolishing various court fees. And more countries are signing up to the Hague convention: Pakistan, where about 40 to 50 British children are taken each year, will sign next month. India, one of the main destinations for abducting parents, recently launched a public consultation on whether to sign up, too.

But the convention has a big flaw: it makes no mention of domestic violence. Many of the parents it classifies as abductors are women fleeing abusive partners. One eastern European woman who moved to Britain shortly before giving birth and fled her violent fiancé four months later, says she was turned away by women’s shelters and denied benefits because she had lived in Britain for such a short time. For the past year she has lived on charity from friends. The police have taken her passport to stop her leaving Britain with the baby. Another European woman, living in New Zealand, says she fears being deported without her toddlers when her visa expires in a few months. She fled domestic abuse with the children and a bag of clothes in December, and has been moving from one friend’s house to another ever since.

Child abduction is often a desperate parent’s move of last resort, says GlobalARRK’s founder, Roz Osborne. One parent, who has residence rights, may have been granted sole or joint custody, meaning the children cannot be taken abroad without permission. But the other parent may have entered on a spousal visa which lapses when the marriage ends. Even if permission to remain is granted, it may be without the right to work or receive state benefits. In such cases, the decision of a family court guaranteeing visiting rights or joint custody can be close to meaningless.

Britain’s departure from the EU could mean many more divorcing parents find themselves in this desperate state. Around 3.3m citizens of other EU countries live in Britain, and 1.2m Britons have moved in the opposite direction; so far it is unclear whether they will continue to have the right to stay put and work. And in America, says Jeremy Morley, a lawyer in New York who specialises in international family law, immigration issues are increasingly used as weapons in child-custody cases. Judges in family courts, he says, often pay little attention to immigration issues when ruling on custody, because they know few people are deported solely because their visas have expired. But under Donald Trump, that may change.

Many parents have no idea what they sign up for when they agree to follow a spouse abroad, says Ms Osborne. They may mistakenly believe that if things do not work out, they can simply bring the children back home. Ms Baggott’s move to Germany was supposed to be a five-year adventure, the duration of her husband’s work visa. Instead, she says, she has endured “a decade of hell”.

Source:  Unhappily ever after – For multi-national families, breaking up can lead to tragedy”, The Economist, 18 February 2017

Pakistan: Hague Convention Enters into Force

Pakistan: Hague Convention Enters into Force

On 1 March 2017, the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction entered into force for Pakistan. After having deposited its instrument of accession to the Convention on 22 December 2016, Pakistan became the 96th Contracting State to the instrument.

More information is available on the Child Abduction Section of the Hague Conference website.

While not a Member State of the Hague Conference, Pakistan is now a Contracting Party to two Hague Conventions, the other instrument being the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Source:  “Pakistan:  Hague Convention Enters Into Force”, Hague Conference on Private International Law website, 2 March 2017