Definition
In Korean law, there are no explicit provisions concerning attorney-client privilege, including with regard to any meaning, scope, or privilege.
There are, however, clauses under different laws relating to the confidentiality rights of lawyers and the right to refuse to give evidence that could be adverse to a client. Therefore, some practitioners consider that the principle of ‘judicial professional privilege’ is known as a by-product of these confidentiality responsibilities under Korean law.
However, even under such an interpretation, privilege would only be accepted as a by-product or derivative effect of the confidentiality duty and would thus not be capable of being invoked directly by the consumer. In addition, in fact, there have been cases where investigating agencies have specifically declined to recognize that legal professional protection has been given to records.
In South Korea, legal professional confidentiality is considered an important element in the establishment of a trust-based sound lawyer-client relationship.
The client’s rights must be secured in order to promote lawyer-client interactions. Legal advice between the lawyer and the client is protected by I the fundamental right to counsel’s assistance (Article 12(4) of the Constitution of the Republic of Korea), (ii) the right of the lawyer to avoid the seizure of articles kept in their custody as a result of a mandate they have received in the course of their practice (Article 112 of the Korean Criminal Procedure Act), (iii) the right of the lawyer
The International Legal Consultant Act codified the confidentiality rule as it relates to correspondence with accredited non-national lawyers.
Legal professional secrecy does not explicitly deny immunity of communications between in-house lawyers and their clients. The presence of privilege is subject to stricter scrutiny in the case of in-house counsel. In other words, since in-house counsel has a dual role as an employee and counsel at the same time, one will have to consider that there is a strong opinion against protecting lawyer-client privilege between in-house counsel and the organization.
Overall, there is a rising demand to expand the scope of protection offered by the confidentiality principle in order to appeal to the increasing diversity of legal professionals. The rule of confidentiality for legal professionals in South Korea is mainly specified in the form of a duty-violation that is punishable by law. Article 317 of the Criminal Act makes it a felony for a lawyer, an associate, or any person previously engaged in the practice to expose the secret of another person that has come to their attention in the course of their profession. The article provides that such disclosure is punishable by:
incarceration or imprisonment for no longer than three years without labour in prison;
suspension of qualifications not exceeding ten years; or – suspension of qualifications not exceeding ten years; or
a fine not in excess of KRW seven million.
Under Article 26 of the Attorney-at-Law Act and Article 18 of the Ethics Code for Lawyers of the Korean Bar Association, the responsibility of confidentiality is considered to be one of the most fundamental duties in forming relationships between lawyers and clients.
The Korean Bar Association and the Ministry of Justice have also set up their own Disciplinary Attorney Commissions, where disciplinary action can be taken against lawyers who are in violation of the rules in place.
In the Civil Procedure Act and the Criminal Procedure Act, legal professional ‘confidentiality,’ as discussed below, is set out. The duty to confidentiality is subject only to such permitted exceptions, including the need to obtain the client’s consent or to report matters of public interest.
In the sense of civil litigation, legal professional secrecy Article 315 of the Civil Procedure Act stipulates that ‘a witness may refuse to testify if an attorney, patent attorney,… Or a holder of another position responsible under laws for keeping secrets,… On matters falling under the secrets of their official duties, or a person who used to be in that post is investigated.’
Exceptions to the above general rule, however, include cases where:
that there is a substantial public interest at stake;
permission has been given by the customer; or
a lawyer will protect his own interests.
Legal professional privilege in the context of judicial inquiries
An individual who is or was a licensed lawyer can, pursuant to Article 112 of the Criminal Procedure Act, resist the confiscation of articles entrusted to them by their clients on the grounds that they are confidential. Article 149 of the Criminal Procedure Act specifies that a lawyer can refuse to testify with respect to the confidential information of a client where that information has been obtained in the course of carrying out his legal duties. Exceptions to the duty of confidentiality may occur if the client has consented, or if the matter is a matter of significant public concern.
Legal professional privilege in the sense of the competition authority’s inquiry
Judicial professional confidentiality, as outlined above, would apply whether the case leads to an administrative complaint or a criminal lawsuit. The general confidentiality principles embodied in the Criminal Act and the Attorney-at-Law Act would otherwise apply. In order to implement the Act, Article 50-2 of the Monopoly Control and Fair Trade Act allows the public authorities responsible for the investigation to carry out their inquiries within the relevant statutory limits. Article 50-2 goes on to say that it is forbidden for public officials to abuse their investigative power for any other reason, etc. Although this article may be subject to interpretation, the inquiries carried out by the antitrust authority shall be performed within the limits required to avoid any impediment to the right of a lawyer to exercise his legal professional confidentiality obligation.
Legal professional privilege scope
The above-mentioned procedural laws form the fundamental scope of legal professional confidentiality in South Korea. The extent of legal professional confidentiality is further clarified by Article 18 of the Korean Bar Association’s Ethics Code for Lawyers.
Paragraph 1 of Article 18 states the general rule:’ Attorneys shall not reveal or unfairly use sensitive customer information collected in the performance of their duties.’ Paragraphs 2 and 3 contain the ‘work product doctrine,’ in which the Code forbids the disclosure of ‘customer correspondence and customer submitted documents/articles’ (ordinary work product; Paragraph 2) and Paragraph 2) (opinion work product; Paragraph 3). The exceptions to the confidentiality rule are set out in Article 18, Paragraph 4. Relevant information can be revealed or used to the minimal extent required if: I a matter of significant public interest is at issue; (ii) permission has been given by the client; or (iii) the lawyer wants to protect his or her own rights.
The principle of ‘attorney client privilege,’ which allows ‘customers’ the right to refuse to reveal confidential correspondence between the client and their lawyer, is not accepted by Korean law. A lower court decision which sought to derive attorney client privilege from the Korean constitution was overturned by the Supreme Court of Korea in 2012.
However, under Articles 112 and 149 of the Criminal Procedure Act and Article 315 of the Civil Procedure Act, legal professional ‘privilege’ can also be exercised in terms of the rights of ‘attorneys’ to deny evidence about client confidences and to resist seizure of articles of clients.
Are conversations with in-house counsel secured by the confidentiality of legal professionals?
The safeguards provided by legal professional confidentiality do not specifically preclude in-house counsel. There is, however, a growing requirement to be specifically acknowledged for the extension of legal professional confidentiality to in-house counsel. The Korean Bar Association’s Ethics Code for Lawyers was revised on February 24, 2014 to include a declaration that one of the most fundamental duties of in-house counsel is to preserve independence within the organization. In effect, this revision highlights that in-house lawyers are independent of the corporate agency and thus supports the argument that in-house lawyers should also be protected by the same rules of professional confidentiality that apply to lawyers in private practice. In practice, however, all legal opinions/advice from in-house lawyers are not covered by legal professional confidentiality when a search and seizure is carried out against a company, and can be used and prosecuted by the investigating authorities. No such practice is sanctioned by the Korean courts.
Will the correspondence of non-nationally trained lawyers apply to legal professional confidentiality?
In the sense of criminal procedure, there are no rules or cases that address these problems. Legal professional confidentiality can, however, extend in civil litigation to all correspondence with non-nationally accredited lawyers. A witness can refuse to testify under Article 315 of the Civil Procedure Act if a lawyer or ‘holder of another position responsible for keeping secrets under statutes’ is examined on matters pertaining to such secrets. A foreign legal consultant has an obligation under Article 30 of the Foreign Legal Consultant Act to keep the secrets of clients private. Foreign legal experts, however, often enjoy legal professional privacy and the freedom to deny evidence.