Government lawyers in South Korea, Japan and Australia

There are considerable similarities — and some significant differences — between the Japanese and South Korean governments’ management of their respective public and private law cases.

And while the backdrop and issues in Australia regarding government litigation services diverge even further, there is much scope for mutual learning between these three countries.

In Japan, the government handles around 20,000 court cases, plus about 7,000–8,000 new cases coming in each year and a similar number being disposed of. The caseload has only increased slowly, despite reforms to the Administrative Case Litigation Act in 2004 and broader changes to the justice system. Only 55 prosecutors manage most of the cases, but the government’s success rate is still very high.

In South Korea, the government’s caseload has grown more sharply since the 1980s, and over the last decade in particular. Administrative (or public) lawsuits grew from 2,185 in 1981 — when the democracy movement gained more traction, leading to the collapse of South Korea’s military-led government in 1987 — to 33,424 cases in 2010. There were also 2,416 other ‘state litigation’ cases in 1981, where the government is a party or intervener, compared to 7,245 in 2001 and 9,929 in 2010.

Another difference is that the South Korean government’s success rate in state litigation cases seems somewhat lower, and — most noticeably — has only started rising since 2001. The government’s success rate in administrative lawsuits is also showing a similar trend.

Two organisational features seem to underlie these differences. First, while the National Litigation Division in South Korea’s Ministry of Justice has only 35 prosecutors, it now has 93 ‘public service advocates’. The latter includes employees who are qualified, but who usually have not yet practiced, as lawyers. Most have completed South Korea’s difficult legal examination, and perform legal work for the government instead of serving in the military during the compulsory conscription period. They assist in government litigation under the prosecutors’ direction, and provide overall guidance for officials from administrative agencies who conduct smaller-scale litigation. By contrast, Japan’s prosecutors receive assistance from many administrative officials (jimukan), but those officials have not yet passed Japan’s legal examination.

Second, the Korean Government Litigation Service (KGLS) was established in February 2008 as a law firm exclusively for the state. As well as competing with private law firms, which may be requested — quite infrequently — to undertake state or administrative lawsuits, the KGLS provides the government with general legal advice, including the drafting of legislation and contracts, research and opinions, and assistance in negotiating FTAs and other treaties. The legal work of the KGLS is in some respects similar to the Australian Government Solicitor (AGS). Excluding limited areas of tied work, the AGS competes with private lawyers and other government department in-house lawyers for legal work from the Australian government. But the KGLS is much smaller than the AGS: the KGLS currently employs 36 lawyers, including ex-prosecutors, ex-judges and lawyers previously in private practice, as well as 38 other staff. The KGLS’s success rate is relatively high, only losing 119 out of 937 cases in 2011.

It seems that Japan’s Ministry of Justice prefers to keep matters in-house, and will hire private lawyers on limited-term employment contracts in order to maintain consistency and predictability. But the KGLS experience so far suggests that prosecutors can manage cases just as well when acting from outside the department.

Compared to Japan, though, the South Korean government may begin to lose a higher proportion of cases over the medium to long term if too many KGLS lawyers leave for, or return to, private practice. This would likely be of considerable concern to the South Korean government, which introduced organisational changes to improve its success rate, despite rising caseloads. Similarly, Japan’s Ministry of Justice is worried about wasting taxpayers’ funds by losing too many cases.

But both countries can learn one lesson from Australia: the notion that the government should be a ‘model litigant’, which basically requires it to act fairly rather than concern itself with always winning cases, even when its superior financial, informational and human resources may make that possible. This view of the ‘rule of law’ has led the Australian government, for example, to place more emphasis on the use of alternative dispute resolution in lawsuits involving the state.

More instrumentally, this tendency is also underpinned by burgeoning costs to the government for litigation and other legal services — Australia’s move to deregulate the market means that government departments are no longer required to use only the AGS. Thus, Australian policy makers should look closely at South Korea, as well as Japan, to uncover ways to promote further efficiencies and greater predictability in litigation involving the state.

By Luke Nottage Professor and Associate Dean at Sydney Law School, University of Sydney, and founding Co-Director of the Australian Network for Japanese Law. An earlier version of this article was first published on the Japanese Law and the Asia-Pacific blog.