[Attorney's Privilege] ③ Specifying Exceptions is Key... Balancing the Right to Counsel and Prosecution's Investigation Authority

Exceptional Grounds for Denial to Prevent Judicial Obstruction
Recognized in Most English-Speaking Countries... Korean Companies Disadvantaged in Overseas Litigation
Preliminary ACP Opinion for 'Korean-Style Discovery'

Editor's NoteIs it justifiable for investigative agencies to seize and search even a lawyer's 'legal advisory materials'? Does this infringe upon the constitutionally guaranteed right to counsel? Discussions on this issue 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 from the Democratic Party of Korea and a member of the Legislation and Judiciary Committee, 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 seizing and searching legal advisory materials will be curtailed. Asia Economy examines the pros and cons of ACP introduction between the prosecution and the legal profession, and summarizes the key issues and alternatives.

The amendment to the Attorney Act, focusing on the introduction of the Attorney-Client Privilege (ACP), was consecutively proposed in the 22nd National Assembly by Lee Geon-tae, followed by Kim Byung-gi and Seo Young-kyo, all members of the Democratic Party of Korea. All three bills include provisions stating that 'the contents of confidential communications between lawyers and clients shall not be disclosed, submitted, or inspected.' If these bills pass, the customary practice of prosecutors and investigative agencies conducting forced investigations on law firms, legal teams, or lawyers' offices will be restricted.

The key issue lies in the exception clauses. It is crucial to set the scope of exceptions to prevent law firms from becoming 'secret warehouses' or 'hideouts' for concealing crimes. The bills proposed by Lee Geon-tae, Kim Byung-gi, and Seo Young-kyo all exclude from the protection of confidentiality privilege cases where ▲the client consents, ▲there is a significant public interest, or ▲a dispute arises between the client and the lawyer. Additionally, Seo's bill includes an exception for 'cases where the client uses legal services to commit a crime,' and Kim's bill adds 'cases where the lawyer and client are accomplices' as exceptions. This is to prevent the 'attorney-client privilege' from being abused as a tool to obstruct the search for substantive truth.

According to the legal community on the 13th, discussions on the exception clauses are active, centered around the Korean Bar Association (KBA). Lee Tae-han, Vice President of the KBA, stated, “If too many exceptions are set, the purpose of confidentiality privilege may be diluted, so it is necessary to specify discussions on exceptional grounds for non-permission.”

The legal profession views the 'Model Rules of Professional Conduct' in the United States, which specify cases where client confidentiality may be disclosed, as a reference. These rules state that confidentiality may be limited only under conditions such as ▲preventing a crime in advance, ▲complying with court orders, and ▲occurrence of client death or injury. It is also argued that since the current Criminal Procedure Act Articles 112 (Professional Secrets and Seizure) and 149 (Professional Secrets and Refusal to Testify), as well as Article 26 of the Attorney Act (Duty of Confidentiality), already provide exceptions for 'cases of public interest,' there is little risk of abuse of confidentiality privilege.

Professor Jung Jun-hyuk of Seoul National University Law School said, “If a bill is drafted to introduce confidentiality privilege while excluding the possibility of abuse, it may not obstruct the determination of substantive truth.” Former Chief Judge Jeon Dae-gyu, who served at the Seoul Bankruptcy Court, stated, “Confidentiality privilege should be established as a means to guarantee procedural justice, with exceptions such as cases where the lawyer actively incited the crime.”

Recognized in Most Anglo-American Countries... Disadvantageous for Korean Companies in Overseas Litigation

There is growing support for the urgent introduction of ACP in Korea, as most major countries overseas have adopted it. Although ACP originated in Anglo-American law, most countries except Korea have codified it into law. The United States guarantees ACP under the Federal Rules of Evidence, the Uniform Evidence Act, and state laws. The United Kingdom regulates attorney privilege (Legal Professional Privilege) under case law.

Germany's Criminal Procedure Act guarantees the right to refuse testimony regarding facts learned in the course of a lawyer's duties and the right to refuse seizure of written communications with clients. France amended its Criminal Procedure Act in December 2021 to strengthen the protection of lawyers' professional secrecy and defense rights by tightening the requirements and procedures for searches and seizures of lawyers' offices and residences.

It is also argued that Korean companies may be disadvantaged in cross-border legal disputes related to fair trade or anti-corruption cases due to the absence of attorney-client privilege. An international law specialist lawyer said, “When lawyers from multiple countries hold joint litigation strategy meetings, Korean lawyers are sometimes asked to leave the meeting room,” adding, “This is because communications with Korean lawyers are not protected by privilege to refuse evidence submission.”

ACP Mentioned as a Prerequisite for Introducing a ‘Korean-Style Discovery’

There is also an expectation that ACP discussions are inevitable for the introduction of a ‘Korean-style discovery’ system in civil trials. Chief Justice Cho Hee-dae has hinted at introducing this system earlier this year to address trial delays. The discovery system is a procedure where parties request and exchange evidence related to the case before entering litigation. Both sides must disclose all necessary evidence without concealment, and failure to properly submit or destruction of evidence can result in a loss judgment. However, documents prepared by legal representatives for clients are protected under attorney-client privilege. A KBA official said, “If the discovery system is introduced without confidentiality privilege, all documents discussed with lawyers could be used as evidence.”

A lawyer from a major law firm stated, “If criminal trials proceed too efficiently and swiftly, many innocent people may suffer,” emphasizing, “To ensure adversarial proceedings guaranteeing equal attack and defense, and to move away from the inquisitorial system (where investigation and trial powers are concentrated in one agency), confidentiality privilege must be introduced in an appropriate manner.”