Despite the Constitutional Court’s Unconstitutional Ruling, KBA Issues Statement Welcoming “Constitutional Decision on LawTalk Membership Ban”
Legal Community: “KBA Distorts the Constitutional Court’s Decision, Interpretation Is Excessive”
KBA: “We Will Continue Disciplinary Procedures Against Lawyers Joining LawTalk”…
Conflict Unlikely to End Without a Court Ruling
![[Law & Story] The 7-Year War Between 'LawTalk' and the 'KBA' Continues Despite the Constitutional Court Ruling](https://cphoto.asiae.co.kr/listimglink/1/2022052815501184308_1653720611.jpg)
Parts of the "Regulations on Lawyer Advertising" ruled unconstitutional by the Constitutional Court (marked in red) and parts ruled constitutional (marked in blue). / Provided by the Korean Bar Association
In Choi Seok-jin's Legal Story, we aim to cover various issues revolving around the legal community, focusing on courts and prosecutors. We plan to write somewhat freely on topics such as the legal points or prospects of major cases, behind-the-scenes stories, and untold anecdotes, without being bound by subject or format. Today’s eighteenth story discusses the Constitutional Court’s decision regarding the 'Regulations on Lawyer Advertising.'
[Asia Economy, Legal Specialist Reporter Choi Seok-jin] On the 26th, the Constitutional Court ruled that certain parts of the 'Regulations on Lawyer Advertising' (hereafter, the Regulations) violate the Constitution and declared them unconstitutional.
This was the first judicial institution’s judgment in the seven-year-long war between LawTalk and lawyer organizations, which began in earnest when the Seoul Bar Association filed a complaint against LawTalk’s operator, Law&Company CEO Kim Bon-hwan, for violating the Attorney-at-Law Act in 2015.
However, despite the Constitutional Court’s ruling of unconstitutionality, the conflict between LawTalk and lawyer organizations such as the Korean Bar Association (hereafter, the KBA) shows no sign of resolution.
Opposite Interpretations of the Constitutional Court’s Decision... Whose Interpretation Is Correct?
LawTalk welcomed the decision, stating, "We welcome the Constitutional Court’s ruling of unconstitutionality" and expressed respect for the Court’s fair judgment. This was a natural response.
What was surprising, however, was the reaction of the KBA to the unconstitutionality ruling on three specific provisions (since the ruling was on parts of the provisions, not the entire articles, we will refer to it as such). The day after the ruling, on the 27th, the KBA issued a press release welcoming the constitutional ruling on the regulation banning LawTalk membership advertisements.
While nearly all media outlets had already published dozens of articles titled 'Constitutional Court Rules Lawyer Advertising Regulations Unconstitutional,' the KBA presented a completely opposite interpretation. Among reporters and lawyers, there was talk that 'the KBA is engaging in self-delusion.'
The core of the Constitutional Court’s decision was that three parts of the advertising regulations created by the KBA to block lawyers from joining LawTalk violated the constitutional principles of proportionality and legal reservation, infringing on the freedom of expression and professional freedom of LawTalk and lawyers. However, the KBA listed the remaining provisions not ruled unconstitutional and claimed that the Court had upheld them, which led to such remarks.
As will be mentioned again later, the key provision under review by the Constitutional Court was Article 5 (Restrictions on Advertising Methods), Paragraph 2, Subparagraph 1. This provision prohibited lawyers from requesting or cooperating with companies that advertise lawyers for a fee, directly targeting LawTalk.
However, the KBA argued that the provision Article 5, Paragraph 2, Subparagraph 2, which the Court upheld, is the core basis for disciplining lawyers who join LawTalk and self-praised that the Court recognized the constitutional legitimacy of the KBA’s disciplinary actions against LawTalk-participating lawyers.
Article 5, Paragraph 2, Subparagraph 2 prohibits lawyers from requesting or cooperating with advertising entities that are not lawyers and that display their company name or trade name to connect lawyers and consumers or advertise lawyers for legal consultations or case introductions.
The subject of lawyer advertising should be the lawyer, but if Law&Company, which is not a lawyer, advertises prominently under its own company name that it will connect clients with the most suitable lawyers for a fee, receives money from clients as a referral fee, or advertises that it will connect clients to lawyers for a fee and receives referral fees (or membership fees under the name of referral fees) from lawyers, the KBA’s argument has some merit.
However, such acts are already violations of the Attorney-at-Law Act and subject to criminal punishment without needing special prohibition in the regulations. Article 34, Paragraph 1, Subparagraph 1 of the Attorney-at-Law Act prohibits anyone from receiving or promising to receive money, entertainment, or other benefits in advance for introducing or inducing clients or related parties to specific lawyers or their staff, and violators face imprisonment of up to seven years or fines up to 50 million won under Article 109, Paragraph 2 of the same Act.
Of course, LawTalk, prosecutors, the Ministry of Justice, and the KBA hold differing views on this matter.
LawTalk claims that it does not receive commissions for introducing specific lawyers but only charges advertising fees to display lawyer advertisements on its online website or mobile app, and since it does not receive fees for consultations or case acceptance, it is merely an advertising platform, no different from portals like Naver that charge for lawyer advertisements. Investigative agencies such as the police, prosecutors, and the Ministry of Justice share this view.
On the other hand, lawyer organizations argue that LawTalk’s service is not simple 'advertising' but 'brokerage' or 'introduction' of lawyers, and that receiving economic benefits for introducing or inducing lawyers violates the current Attorney-at-Law Act.
The KBA believes that although LawTalk receives money from lawyers under the name of 'advertising fees,' in reality, it receives money for introducing or referring lawyers to clients, thus falling under Article 5, Paragraph 2, Subparagraph 2 of the advertising regulations. Since the Constitutional Court upheld this provision, the KBA claims it can continue disciplining lawyers who advertise on LawTalk.
However, this interpretation directly contradicts the prosecutors’ and Ministry of Justice’s view that LawTalk’s business method does not violate the Attorney-at-Law Act, and personally, I see it as a 'self-serving interpretation' that distorts the intent of the Constitutional Court’s decision.
The Constitutional Court, when judging the constitutionality of Article 5, Paragraph 2, Subparagraph 2, stated, "According to Article 23, Paragraph 1 of the Attorney-at-Law Act, the forms of advertising generally permitted are those providing information about lawyers’ work. Prohibiting the display of others’ trade names or business-related information in such advertisements restricts lawyers’ profit-seeking activities and serves as an appropriate means to ensure high public and ethical standards in their duties, maintain order in case acceptance, and protect consumers."
It further noted, "The Attorney-at-Law Act prohibits lawyers from allowing others to use their names (Article 34, Paragraph 3, latter part), prohibits non-lawyers from employing lawyers to operate law offices (Article 34, Paragraph 4), and prohibits profit-sharing between lawyers and non-lawyers (Article 34, Paragraph 5), with criminal penalties for violations. Article 5, Paragraph 2, Subparagraph 2 of the Regulations prohibits the display of others’ trade names in lawyer advertisements to prevent lawyers from being used in others’ business or giving the false impression of affiliation with non-lawyers. Such restrictions arise from the lawyer system’s monopoly over legal affairs and are part of the burdens lawyers must bear."
Finally, the Court stated, "The disadvantage ultimately suffered by the petitioner lawyers due to this provision is the limitation on advertising methods, and for the petitioner company, it is the limitation on advertising lawyers by displaying the company name. However, petitioner lawyers can use various advertising methods except those restricted by Article 23, Paragraph 2 of the Attorney-at-Law Act and these Regulations, and the petitioner company can also continue lawyer advertising in ways not prohibited by the Attorney-at-Law Act, such as the prohibition on partnerships," highlighting this point.
In conclusion, while upholding Article 5, Paragraph 2, Subparagraph 2, the Constitutional Court did not state, as the KBA claims, that LawTalk’s business method involves advertising lawyers by displaying its own trade name or identity. If it had, the Court would not have said that the petitioner company could continue advertising in ways not prohibited by the Attorney-at-Law Act. Therefore, the KBA’s claim that the Court legitimized disciplining lawyers who join LawTalk distorts the Court’s intent. The Court only stated that if Law&Company advertises lawyers by prominently displaying its own company name or trade name, employs lawyers, partners with lawyers, or shares profits through case acceptance, then it is reasonable to prohibit lawyers from advertising through LawTalk. However, the Court did not say that LawTalk’s current advertising method falls under Article 5, Paragraph 2, Subparagraph 2, nor that the KBA can discipline lawyers advertising on LawTalk based on this provision.
Meanwhile, the KBA’s press release highlighted the parts of the 50-page Constitutional Court decision that upheld provisions not ruled unconstitutional, such as ▲the illegality of unfair low-price advertising within legal platforms, ▲the illegality of 'sentence prediction' services, and ▲the illegality of 'connection acts' that directly link lawyers and consumers for economic compensation, even citing the page numbers. The KBA claimed the decision was a constitutional ruling on the advertising regulations. It is speculated that the KBA needed time to find and organize favorable parts of the decision, which is why the press release was issued the day after the ruling.
However, unfair low-price advertising or economic compensation for lawyer referrals inherently violate the Attorney-at-Law Act or the Act on Labeling and Advertising, so the Court’s recognition of their illegality or upholding of the relevant regulations is unsurprising. It is natural that regulations prohibiting illegal advertising are not problematic. Notably, the Court stated that regulations banning advertisements claiming to predict outcomes of investigations, administrative dispositions, or court rulings (Article 4, Paragraph 13 of the Regulations) are appropriate means to maintain the public nature and reliability of legal affairs and prevent consumer harm. This point should be considered when LawTalk expands its services to clients in the future.
Constitutional Court: "Lawyer Advertising Should Be Broadly Permitted"… "The Purpose of Lawyer Advertising Is to Introduce or Attract Legal Consultations or Cases"
The Court, regarding the interpretation of Article 5, Paragraph 2, Subparagraph 1, noted that the prohibited acts under the fee-based advertising ban regulation are advertising, promotion, and introduction acts. Although the regulation defines the purpose as 'introduction, referral, or inducement,' it does not limit the target to specific lawyers. Considering that advertising aims to persuade consumers to purchase, it is difficult to conclude that introduction, referral, or inducement necessarily targets specific lawyers.
It further stated, "It is reasonable to interpret that advertising, promoting, or introducing multiple unspecified lawyers simultaneously for the purpose of introducing or attracting legal consultations or cases also falls under the fee-based advertising ban regulation."
Moreover, "Since the Attorney-at-Law Act already prohibits introduction, referral, or inducement acts targeting specific lawyers, and such acts can be punished as violations even if they take the form of advertising or promotion, it is difficult to view the fee-based advertising ban regulation as merely re-regulating these prohibited acts."
In other words, the Court pointed out that the KBA’s advertising ban regulation restricts lawyer advertising more broadly than the Attorney-at-Law Act and that advertising multiple unspecified lawyers is not a violation of the Act and should be permitted.
The Court also assessed the minimal infringement of fundamental rights regarding Article 5, Paragraph 2, Subparagraph 1, noting that the part prohibiting 'connecting lawyers and consumers' overlaps with the prohibited referral acts under the Attorney-at-Law Act, which carry criminal penalties. However, the fee-based advertising ban regulation completely prohibits paid advertising through advertising companies, which is generally permitted under the Attorney-at-Law Act.
It added, "Advertising inherently aims to attract consumers, and since the purpose of lawyer advertising is to introduce or attract legal consultations or cases, economic compensation or case referral purposes in the regulation do not significantly limit its application."
The Court judged the appropriateness of the means, stating that under Article 23, Paragraph 1 of the Attorney-at-Law Act, which generally permits lawyer advertising through various media, lawyers paying advertising fees to advertising companies and advertising is naturally allowed, and no regulations prohibit such advertising methods.
It continued, "Consumers can easily access legal service information through lawyer advertisements, which effectively provide information about which lawyers mainly handle which tasks. Although there are negative effects such as excessive competition, exaggerated facts, consumer deception, and damage to the dignity and credibility of the legal profession, reasonable regulation of lawyer advertising is necessary, but considering the fundamental rights nature of advertising expressions, broad advertising should be allowed except for necessary limits on content or methods."
Legal Community: "KBA Leadership’s Claims Are Excessive"… "They Are Engaging in Self-Delusion"
So, is it only my view that the KBA’s interpretation?that the Constitutional Court upheld the advertising regulations and legitimized disciplining lawyers who join LawTalk?is self-serving?
It does not seem so. Most legal reporters and lawyers who have long covered the conflict between LawTalk and the KBA share this view.
As mentioned earlier, I consider this Constitutional Court decision a complete victory for LawTalk. After the ruling, I asked several lawyers about its significance, and not a single lawyer agreed with the KBA’s interpretation. Only lawyers affiliated with the KBA’s executive body expressed a different view.
However, many lawyers seemed reluctant to openly oppose the policies strongly pushed by their executive bodies during interviews. One lawyer said, "The team leader is right, but I know the KBA executives well... so I can’t say much more."
This lawyer added, "They pushed hard and don’t want to hit the brakes or get scratched. After seeing the KBA’s statement, I thought, ‘These people are just engaging in self-delusion.’"
Another lawyer said, "This is politics anyway. The KBA’s stance is firm, and the current executive is very strong. Even if the Court had ruled the entire regulation unconstitutional, they would have pushed their claims somehow. In that sense, this ruling actually gave the current KBA executives an excuse."
He analyzed, "The KBA has lost to LawTalk repeatedly, but since the Court upheld some provisions, the KBA may see this as a small first victory and use it as evidence that their logic is correct."
On the other hand, a KBA official explained, "There are many legal advertising methods, but lawyers must comply with the advertising regulations. For example, advertising on the side of a bus is constitutional, and we won’t object, but if a lawyer advertises on the side of a bus, that lawyer violates the advertising regulations."
The official added, "LawTalk may be legal, but that and disciplining lawyers who join LawTalk are separate issues. The advertising regulations prohibit lawyers from advertising on such sites."
When asked, "What difference is there between lawyers advertising on daily newspapers or legal journals’ websites and advertising through LawTalk?" the official said, "LawTalk is a site created for profit by connecting ordinary people and lawyers, which distinguishes it from newspapers."
The official said, "A legal platform’s purpose is to connect lawyers," concluding that since LawTalk’s business model is based on connecting clients and lawyers, the advertising regulations prohibiting advertising on such platforms and disciplining lawyers who violate them are justified. Ultimately, the issue returns to whether LawTalk’s business method is legal advertising under current law or illegal lawyer introduction or referral violating the Attorney-at-Law Act.
The problematic advertising regulations were created by the KBA in May last year as a desperate measure amid a noticeable increase in LawTalk member lawyers, following repeated non-prosecution decisions by prosecutors and the Ministry of Justice’s firm stance that LawTalk is legal.
Since the logic that LawTalk violated the Attorney-at-Law Act did not hold in investigations, the KBA’s executive body resorted to disciplinary measures to prevent member lawyers from joining LawTalk, and the advertising regulations, which were the basis for disciplining LawTalk member lawyers, were forcibly included in the regulations that were later ruled unconstitutional.
Article 90 of the Attorney-at-Law Act lists five types of disciplinary actions: permanent disbarment, disbarment, suspension of up to three years, fines up to 30 million won, and reprimand. Article 91, Paragraph 2 lists grounds for discipline, including violating the rules of the local bar association or the KBA (No. 2) and conduct damaging the dignity of lawyers (No. 3), which can lead to disbarment. Thus, lawyers faced significant burdens in joining or maintaining membership with LawTalk, risking disbarment, suspension, or fines.
The KBA’s measures led to a decrease in LawTalk membership.
According to Law&Company, LawTalk’s lawyer membership increased continuously for 85 months after launch, nearing 4,000 members in March last year. However, following the KBA’s advertising regulation amendment and enforcement, membership dropped to 3,634 in May and 2,885 in August. Due to ongoing pressure from the KBA, membership further declined by 56% to 1,706 by November last year.
Supreme Court Ruling May Be Needed to End the Conflict… KBA’s Lack of Regret Over Constitutional Court’s ‘Unconstitutional’ Ruling Is Regrettable
Despite the Constitutional Court’s 'unconstitutional' ruling, the war between LawTalk and lawyer organizations seems far from over.
The KBA has clearly stated it will continue disciplining lawyers who join LawTalk.
Ultimately, a Supreme Court ruling may be necessary to resolve the issue, as the Supreme Court holds the final authority on legal interpretation, while the Constitutional Court rules on the constitutionality of laws, orders, and public authority exercises.
The problem is that unless prosecutors indict LawTalk for violating the Attorney-at-Law Act, which they have consistently declined to do, the issue cannot be contested in criminal court.
The KBA is unlikely to change its stance without a final judicial ruling.
Therefore, lawyers disciplined for joining LawTalk may sue the KBA claiming the disciplinary actions are unjust, or LawTalk may file damages claims against the KBA for business losses caused by repeated unfounded complaints, unconstitutional advertising regulations preventing lawyers from joining LawTalk, or forcing members to withdraw. This could lead to judicial review of the KBA’s advertising regulations used as grounds for discipline.
Law&Company claimed property rights infringement in its constitutional complaint, but the Court did not consider the economic losses from difficulties operating LawTalk due to the KBA’s advertising regulations as a matter for adjudication, viewing them as de facto effects.
One lawyer said, "It’s too late for the KBA to withdraw its position that LawTalk is illegal." Whether prosecutors issue non-prosecution or the Court rules unconstitutional, the situation has reached a point where progress must continue.
However, the KBA, as the largest interest group and an organization of legal experts, has a mission to protect human rights and realize social justice, as stated in Article 1, Paragraph 1 of the Attorney-at-Law Act.
If prosecutors repeatedly decide LawTalk does not violate the Attorney-at-Law Act and the Constitutional Court rules parts of the advertising regulations unconstitutional, the KBA should objectively reconsider its stance from a legal perspective, not politically or emotionally.
In this regard, the KBA’s attitude after the Constitutional Court’s ruling is deeply regrettable.
The KBA stated that the Court upheld the advertising regulations and will continue disciplinary procedures against lawyers joining LawTalk. It also expressed deep regret and strong concern over the completely opposite and incorrect media reports claiming 'unconstitutional ruling on LawTalk membership ban advertising regulations' immediately after the ruling, based on LawTalk’s CEO’s press conference.
KBA officials have contacted reporters individually, persuading them that headlines or articles stating 'Constitutional Court’s unconstitutional ruling on advertising regulations' are incorrect and requesting inclusion of the KBA’s position. It is rumored that some media outlets have even been asked for corrections or rebuttals.
When the Constitutional Court rules on the unconstitutionality of laws or subordinate statutes, it sometimes declares the entire provision unconstitutional, but often only parts of the provisions are ruled unconstitutional. It is uncommon to claim the entire decision is constitutional just because some parts were upheld.
Looking at the specific decision, the Court declared unconstitutional Article 5, Paragraph 2, Subparagraph 1, the so-called 'fee-based advertising ban' regulation, which the KBA created targeting LawTalk. This is a partial unconstitutionality ruling, and although other parts were upheld, the Court ruled the most critical provision related to LawTalk unconstitutional. The KBA’s claim that the Court upheld the regulations is difficult to understand.
Above all, the Constitutional Court found that three parts of the KBA’s regulations, which were used as grounds for disciplining member lawyers, violated fundamental rights and were unconstitutional. Before distorting the clear unconstitutionality ruling as constitutional, the KBA should have reflected on and expressed regret for creating unconstitutional regulations and using them as disciplinary grounds.
The KBA’s opposition to LawTalk’s legality stems from concerns about lawyers’ dependence on capital.
Currently, LawTalk does not charge membership or case referral fees, but as membership grows and legal platforms like LawTalk become the primary means for clients to find lawyers, advertising fees may increase, and lawyers paying more may be preferentially exposed, leading to advantages in case acceptance based on payment rather than ability. This concern is not unfounded.
However, such issues should be addressed through criminal prosecution and judicial rulings if LawTalk is illegal, not by excluding LawTalk operating legally and disciplining lawyers for joining it based on mere possibilities.
Article 27, Paragraph 4 of the Constitution declares that "a criminal defendant is presumed innocent until proven guilty." The presumption of innocence is a fundamental principle of criminal law guaranteed by the Constitution. Yet, the KBA and Seoul Bar Association’s responses to LawTalk seem to presume guilt rather than innocence. LawTalk has not been convicted of violating the Attorney-at-Law Act, and investigative agencies and the Ministry of Justice have ruled it legal, but the KBA assumes LawTalk is guilty of 'introducing lawyers for money,' a prohibited act under the Attorney-at-Law Act, and claims disciplining lawyers who join LawTalk is justified under Article 5, Paragraph 2, Subparagraph 2.
In fact, many lawyers affiliated with the KBA do not believe LawTalk is illegal. Many agree with prosecutors that LawTalk’s advertising method does not violate the Attorney-at-Law Act or are indifferent. Many young lawyers who graduated from law school and could not join large law firms or experienced lawyers running private offices want to use platforms like LawTalk for affordable advertising. This raises doubts about whether the KBA’s executive response truly serves member lawyers’ interests.
Though not my area of expertise, demand and awareness of legal technology (LegalTech) have changed significantly with the times. Conducting surveys among member lawyers about LawTalk’s legality, the advertising regulations, disciplinary actions, and the Constitutional Court’s decision might be worth considering for the current strong-armed KBA and Seoul Bar Association executives.
*This topic was previously covered in August last year under the title 'What Will Happen to the LawTalk vs. Lawyer Organizations Conflict?' Since the issue of whether LawTalk’s business method violates the Attorney-at-Law Act was already addressed, this article focuses on the Constitutional Court’s decision on the advertising regulations.
![[Law & Story] The 7-Year War Between 'LawTalk' and the 'KBA' Continues Despite the Constitutional Court Ruling](https://cphoto.asiae.co.kr/listimglink/1/2022052816314184323_1653723101.png)
Conflict Timeline Between Rotok and Lawyer Organizations / Provided by Law&Company, the Operator of Rotok
Lawyer organizations such as the Seoul Bar Association and the KBA have never won a battle against LawTalk. In 2015 and 2016, the Seoul Bar Association and the KBA filed complaints against LawTalk for violating the Attorney-at-Law Act, but prosecutors issued non-prosecution decisions citing 'no charges.' Unlike insufficient evidence, a no-charge decision means there is no violation of the Attorney-at-Law Act.
Recently, prosecutors reached the same conclusion regarding a complaint filed by the Lawyers for the Protection of Professional Fields against LawTalk for violating the Attorney-at-Law Act and the Personal Information Protection Act. The police also found no grounds for charges and issued a non-prosecution decision in December last year. The complainants appealed, but prosecutors again concluded no charges.
The Lawyers for the Protection of Professional Fields is led by Kim Jung-wook, president of the Seoul Bar Association, as executive director, and Lee Jong-yeop, president of the KBA, as co-director. Ultimately, lawyer organizations filed complaints three times for violations, but investigative agencies found no criminal grounds, so the cases never reached court.
The Ministry of Justice also holds the position that LawTalk is legal. Former Minister Park Beom-gye expressed this stance multiple times publicly. Meanwhile, the Fair Trade Commission, which investigated the KBA following a complaint from LawTalk, sent reports in November and December last year stating the KBA violated the Fair Trade Act and the Act on Labeling and Advertising. Neither the police, prosecutors, nor the Fair Trade Commission sided with the KBA.
In response, the KBA introduced disciplinary measures against lawyers who joined LawTalk early last year. Since prosecutors and the Ministry of Justice ruled LawTalk’s business method legal, the KBA resorted to threatening member lawyers with discipline if they joined LawTalk. To establish solid grounds for disciplining LawTalk member lawyers, the KBA amended the advertising regulations, forcibly including provisions later ruled unconstitutional (such as prohibiting lawyers from requesting advertisements from non-lawyer advertising entities or advertising contrary to the KBA’s interpretations).
Article 90 of the Attorney-at-Law Act lists disciplinary types: permanent disbarment, disbarment, suspension up to three years, fines up to 30 million won, and reprimand. Article 91, Paragraph 2 lists grounds for discipline, including violating local bar or KBA rules (No. 2) and conduct damaging lawyer dignity (No. 3), which can lead to disbarment. Thus, lawyers faced significant burdens in joining or maintaining LawTalk membership, risking severe disciplinary actions.
The KBA’s measures led to a decrease in LawTalk membership.
According to Law&Company, LawTalk’s lawyer membership increased continuously for 85 months after launch, nearing 4,000 members in March last year. However, following the KBA’s advertising regulation amendment and enforcement, membership dropped to 3,634 in May and 2,885 in August. Due to ongoing pressure from the KBA, membership further declined by 56% to 1,706 by November last year.
Supreme Court Ruling May Be Needed to End the Conflict… KBA’s Lack of Regret Over Constitutional Court’s ‘Unconstitutional’ Ruling Is Regrettable
Despite the Constitutional Court’s 'unconstitutional' ruling, the war between LawTalk and lawyer organizations seems far from over.
The KBA has clearly stated it will continue disciplining lawyers who join LawTalk.
Ultimately, a Supreme Court ruling may be necessary to resolve the issue, as the Supreme Court holds the final authority on legal interpretation, while the Constitutional Court rules on the constitutionality of laws, orders, and public authority exercises.
The problem is that unless prosecutors indict LawTalk for violating the Attorney-at-Law Act, which they have consistently declined to do, the issue cannot be contested in criminal court.
The KBA is unlikely to change its stance without a final judicial ruling.
Therefore, lawyers disciplined for joining LawTalk may sue the KBA claiming the disciplinary actions are unjust, or LawTalk may file damages claims against the KBA for business losses caused by repeated unfounded complaints, unconstitutional advertising regulations preventing lawyers from joining LawTalk, or forcing members to withdraw. This could lead to judicial review of the KBA’s advertising regulations used as grounds for discipline.
Law&Company claimed property rights infringement in its constitutional complaint, but the Court did not consider the economic losses from difficulties operating LawTalk due to the KBA’s advertising regulations as a matter for adjudication, viewing them as de facto effects.
One lawyer said, "It’s too late for the KBA to withdraw its position that LawTalk is illegal." Whether prosecutors issue non-prosecution or the Court rules unconstitutional, the situation has reached a point where progress must continue.
However, the KBA, as the largest interest group and an organization of legal experts, has a mission to protect human rights and realize social justice, as stated in Article 1, Paragraph 1 of the Attorney-at-Law Act.
If prosecutors repeatedly decide LawTalk does not violate the Attorney-at-Law Act and the Constitutional Court rules parts of the advertising regulations unconstitutional, the KBA should objectively reconsider its stance from a legal perspective, not politically or emotionally.
In this regard, the KBA’s attitude after the Constitutional Court’s ruling is deeply regrettable.
The KBA stated that the Court upheld the advertising regulations and will continue disciplinary procedures against lawyers joining LawTalk. It also expressed deep regret and strong concern over the completely opposite and incorrect media reports claiming 'unconstitutional ruling on LawTalk membership ban advertising regulations' immediately after the ruling, based on LawTalk’s CEO’s press conference.
KBA officials have contacted reporters individually, persuading them that headlines or articles stating 'Constitutional Court’s unconstitutional ruling on advertising regulations' are incorrect and requesting inclusion of the KBA’s position. It is rumored that some media outlets have even been asked for corrections or rebuttals.
When the Constitutional Court rules on the unconstitutionality of laws or subordinate statutes, it sometimes declares the entire provision unconstitutional, but often only parts of the provisions are ruled unconstitutional. It is uncommon to claim the entire decision is constitutional just because some parts were upheld.
Looking at the specific decision, the Court declared unconstitutional Article 5, Paragraph 2, Subparagraph 1, the so-called 'fee-based advertising ban' regulation, which the KBA created targeting LawTalk. This is a partial unconstitutionality ruling, and although other parts were upheld, the Court ruled the most critical provision related to LawTalk unconstitutional. The KBA’s claim that the Court upheld the regulations is difficult to understand.
Above all, the Constitutional Court found that three parts of the KBA’s regulations, which were used as grounds for disciplining member lawyers, violated fundamental rights and were unconstitutional. Before distorting the clear unconstitutionality ruling as constitutional, the KBA should have reflected on and expressed regret for creating unconstitutional regulations and using them as disciplinary grounds.
The KBA’s opposition to LawTalk’s legality stems from concerns about lawyers’ dependence on capital.
Currently, LawTalk does not charge membership or case referral fees, but as membership grows and legal platforms like LawTalk become the primary means for clients to find lawyers, advertising fees may increase, and lawyers paying more may be preferentially exposed, leading to advantages in case acceptance based on payment rather than ability. This concern is not unfounded.
However, such issues should be addressed through criminal prosecution and judicial rulings if LawTalk is illegal, not by excluding LawTalk operating legally and disciplining lawyers for joining it based on mere possibilities.
Article 27, Paragraph 4 of the Constitution declares that "a criminal defendant is presumed innocent until proven guilty." The presumption of innocence is a fundamental principle of criminal law guaranteed by the Constitution. Yet, the KBA and Seoul Bar Association’s responses to LawTalk seem to presume guilt rather than innocence. LawTalk has not been convicted of violating the Attorney-at-Law Act, and investigative agencies and the Ministry of Justice have ruled it legal, but the KBA assumes LawTalk is guilty of 'introducing lawyers for money,' a prohibited act under the Attorney-at-Law Act, and claims disciplining lawyers who join LawTalk is justified under Article 5, Paragraph 2, Subparagraph 2.
In fact, many lawyers affiliated with the KBA do not believe LawTalk is illegal. Many agree with prosecutors that LawTalk’s advertising method does not violate the Attorney-at-Law Act or are indifferent. Many young lawyers who graduated from law school and could not join large law firms or experienced lawyers running private offices want to use platforms like LawTalk for affordable advertising. This raises doubts about whether the KBA’s executive response truly serves member lawyers’ interests.
Though not my area of expertise, demand and awareness of legal technology (LegalTech) have changed significantly with the times. Conducting surveys among member lawyers about LawTalk’s legality, the advertising regulations, disciplinary actions, and the Constitutional Court’s decision might be worth considering for the current strong-armed KBA and Seoul Bar Association executives.
*This topic was previously covered in August last year under the title 'What Will Happen to the LawTalk vs. Lawyer Organizations Conflict?' Since the issue of whether LawTalk’s business method violates the Attorney-at-Law Act was already addressed, this article focuses on the Constitutional Court’s decision on the advertising regulations.
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