[Attorney Attorney-Client Privilege]② Guarantee of Right to Defense vs. Controversy over Investigation Authority Reduction... Ministry of Justice Calls for 'Careful Review'

Law Firm Feared as 'Crime Hideout'... Calls for Caution Grow
Exceptions Possible if Lawyer Involved in Crime
Encouraging Ruling Recognizing ACP by Southern District Court

Editor's NoteIs it justifiable for investigative agencies to conduct search and seizure even on lawyers' 'legal advisory materials'? Does this infringe upon the constitutionally guaranteed right to counsel? Such discussions are expected to intensify in the 22nd National Assembly. The introduction of the 'Attorney-Client Privilege (ACP)' is gaining momentum. In August, Lee Geon-tae, a member of the National Assembly's Legislation and Judiciary Committee from the Democratic Party of Korea, proposed an amendment to the Attorney Act centered on the introduction of ACP. Subsequently, fellow party members Kim Byung-gi (September) and Seo Young-kyo (November) also submitted similar bills. If these bills pass the National Assembly, the practice of prosecutors conducting search and seizure on legal advisory materials will be curtailed. Asia Economy examines the pros and cons of ACP introduction between the prosecution and the legal community, and summarizes the key issues and alternatives.

Criticism that prosecutors' search and seizure of law firms is a 'foul play' and an 'infringement on the right to defense' is strong, but there is a counterargument that it is an inevitable investigative method to discover substantive truth. Since the execution of search and seizure requires a court-issued warrant, procedural justice is also fulfilled. For this reason, the Ministry of Justice has maintained a 'cautious review' stance since the ACP introduction bill was first proposed to the National Assembly in 2013. A Ministry of Justice official said in a phone interview with this paper on the 12th, "There is no significant change from the existing position." The official added, "When establishing the lawyer's confidentiality right, there is a possibility it could be used as a warehouse for evidence concealment, so comprehensive consideration of supplementary measures is necessary."

The increasing number of cases where lawyers are prosecuted and sentenced also strengthens the 'cautious approach to ACP introduction.' On the 6th, a sitting lawyer was sentenced to two years in prison in the first trial for aiding fraud in connection with Kim Seong-hoon, former CEO of IDS Holdings, who committed a trillion-won-scale multi-level financial fraud. Last month, a sitting lawyer was sentenced to seven months in prison with a two-year probation in the first trial for attempting to threaten a client. Such cases support the prosecution's argument that lawyers should not be a sanctuary for investigations by hiding and assisting clients' illegal acts in exchange for fees.

Concerns Over Law Firms Becoming 'Crime Concealment Places' if Attorney-Client Privilege is Introduced

Inside and outside investigative authorities, there are concerns that if the attorney-client privilege is broadly recognized, law firms or lawyers' offices could effectively become 'secret vaults,' 'hideouts,' or 'data escape places' for concealing crimes. A deputy chief prosecutor said, "Search and seizure of law firms requires a court-issued warrant, and for legal opinion documents to be admitted as evidence of guilt in trials, lawyers must prove their authenticity," adding, "There are already multiple layers of safeguards." Under current law, lawyers can claim participation rights to refuse seizure, and at the trial stage, they can argue for exclusion of illegally obtained evidence or exercise the right to refuse testimony.

The increasing complexity and sophistication of corporate crimes such as market manipulation, accounting fraud, and unfair trade, making investigations more difficult, is also cited as a practical reason for law firm search and seizure. The prosecution cannot help but view the legal advisory content between defendants and lawyers as a 'black box' that opens the door to investigations due to the challenging investigative reality.

However, recent precedents and academia place more weight on ACP introduction. The side effect of law firms becoming places to conceal criminal materials can be prevented by exception clauses in the confidentiality privilege. A representative from the Bar Association said, "The ACP system already allows search and seizure in cases where lawyers are involved in crimes, are accomplices or aiders, or where there are significant public interest reasons," adding, "If discussions on exceptional non-permission regulations are concretized, the adverse effects of introduction can be prevented."

Seoul Southern District Court Recognizes ACP, Prosecution Appeals?Supreme Court Decision Awaited

In February, the Seoul Southern District Court issued a ruling recognizing the introduction of attorney-client privilege. Judge Jung Seong-hwa, handling a case in the Criminal Division 11 of the Southern District Court, partially accepted a quasi-appeal filed by Jang Ha-won, former CEO of Discovery Asset Management, who opposed a search and seizure order. A quasi-appeal is a system where objections are raised to the court against investigative agencies' search and seizure orders. If the court accepts the quasi-appeal, the seized items cannot be used as evidence in trial.

The Southern District Court ruled, "As one of the rights to receive counsel recognized under Article 12, Paragraph 4 of the Constitution, it is reasonable to consider that either the lawyer or the client can refuse disclosure of confidential communications exchanged secretly between them for the purpose of receiving legal advice." Although the prosecution has appealed this case and the Supreme Court is currently reviewing it, it is regarded as an encouraging ruling recognizing the lawyer's confidentiality privilege.

Judge Ha Jong-min of the Gwangju District Court stated in a designated discussion paper at the '14th Korean Legal Professionals Conference' on the 30th of last month, "(The Southern District Court ruling) attempts to derive the client's confidentiality right through interpretation, and it is necessary to pay attention to whether the Supreme Court will take a step further from its existing stance and reach a meaningful conclusion on confidentiality rights." Professor Ye Seung-yeon of the Constitutional Court's Constitutional Research Institute also said, "The client's confidentiality right is clearly a constitutionally protected fundamental right, so legislation that stipulates both the client's and lawyer's confidentiality rights should be enacted promptly to quickly resolve unjust situations of rights infringement."