[비즈한국] Companies sometimes make decisions that are difficult to explain by money alone. Understanding the laws and systems hidden within them can provide a deeper insight into the background. 'Useful Business Tips (Al-Ssul-Bi-Beop)' introduces clues that help in understanding business trends.
One of a lawyer's primary duties is to provide answers and opinions upon a client's request for consultation. While this is a routine and ordinary task, lawyers often find themselves in difficult situations during the process. A representative example is when it is not easy to explicitly point out legal risks in a client's business.
For instance, when a client is aggressively pushing for a project, it is not easy to offer an opinion saying, "There is a possibility of violating the law, so hold off." A more fundamental problem is that even if such an opinion is given, leaving it in a form that can serve as objective evidence, such as emails or documents, is extremely cautious. If regulatory or investigative agencies obtain such materials later, that opinion paper could be used as evidence of the client’s legal violation or guilt.
In fact, I have seen several cases where regulatory authorities attempted to prove a company's legal violation based on opinion papers from law firms obtained during administrative investigations. This is a highly paradoxical situation. It means that a company that spent money to seek advice from an external law firm to comply with the law receives more disadvantageous treatment than a company that made decisions without prior review. The same applies to in-house legal teams and compliance teams. The more actively they express opinions to ensure compliance, the more they end up producing evidence that is ultimately disadvantageous to the company.
The solution is simple. The communication and data sharing between the client and the lawyer should be kept confidential and not disclosed to third parties. Only then can a lawyer offer honest opinions for the client without worrying that the content might be used for other purposes. The same applies to the company. To properly resolve legal issues, a complete and honest exchange of ideas is a prerequisite, and without guaranteed confidentiality, it is difficult to receive faithful legal assistance from the outset.
It is precisely here that recent Supreme Court decisions and the amended Attorney-at-Law Act draw attention. First, there is the Supreme Court decision 2024Mo730 dated February 20, 2026. In a case seeking the partial cancellation of a seizure, the Supreme Court canceled the seizure of messages, emails, and documents prepared by a lawyer that were exchanged between the client and the lawyer. The gist is as follows:
○ The seizure of legal consultation documents, etc., regarding criminal cases created between a suspect/defendant and their defense counsel may infringe on the constitutional right to assistance of counsel and should not be permitted in principle.
○ However, seizure may be exceptionally permitted if the suspect/defendant consents to the seizure of legal consultation documents from the attorney (the party being searched), if the attorney is a co-conspirator, or if there is a significant public interest, such as involvement in other illegal acts.
○ Whether a significant public interest exists must be judged strictly by comprehensively considering various circumstances, such as the seriousness of the criminal charges, the evidentiary value and importance of the seized materials, and the degree of infringement on the right to assistance of counsel caused by the seizure.
○ Therefore, if investigative agencies seize such legal consultation documents when the exceptional cases for permitted seizure do not apply, it constitutes an illegal seizure that infringes on the constitutional right to assistance of counsel.
The Supreme Court confirmed the same stance in a final judgment a few days later. Through the judgment 2025Do4422, rendered on February 26, 2026, the Supreme Court ruled that the seizure of legal consultation documents related to criminal cases between a defense counsel and a suspect is not permitted in principle. In other words, this legal principle is not just a one-off decision but is becoming established through both decisions and final judgments.
Second, there is the amended Attorney-at-Law Act. The amendment, which codifies attorney-client privilege, passed the National Assembly plenary session on January 29, 2026. The amended act established a new attorney-client privilege clause that aligns with the aforementioned Supreme Court decision and is scheduled to take effect on February 20, 2027. The content is as follows:
○ Attorney-at-Law Act Article 26-2 (Attorney-Client Privilege, etc.)
Paragraph 1: A lawyer and a client or a prospective client (hereinafter 'client, etc.') may refuse to disclose confidential communications made for the purpose of providing or receiving assistance regarding legal cases or legal affairs.
Paragraph 2: A lawyer and a client may refuse to disclose documents or data prepared for litigation, investigation, or inquiry related to a case handled by the lawyer.
Paragraph 3: Notwithstanding Paragraphs 1 and 2, disclosure may be made in any of the following cases: ① If there is consent from the client, etc. ② If there is a significant public interest, such as when the lawyer is a co-conspirator with the client, or is involved in the client's evidence destruction, harboring of criminals, receiving of stolen goods, or other illegal acts, or if the client intends to use the confidential communication or documents/data for illegal acts. ③ If necessary for the lawyer to exercise or defend their rights in a dispute between the lawyer and the client, etc. ④ If there are special provisions in other laws.
What should be noted here is that the core of this amendment is the shift from an 'obligation' to a 'right.' Previously, Article 26 of the Attorney-at-Law Act only imposed an obligation on lawyers not to disclose secrets, but it did not explicitly state the active right to protect client data against compulsory investigations. The newly established Article 26-2 fills that void, granting lawyers and clients the right to refuse disclosure.
These changes will have a significant impact on practice. Primarily, the scope of a lawyer's work will expand, and it will be possible to provide more substantive opinions to clients. Furthermore, there is a possibility that the landscape of the legal market will change. Strategies such as utilizing personnel dispatched from external law firms as de facto in-house legal teams as part of regulatory response utilizing attorney-client privilege are being discussed, and some law firms are reportedly already preparing for this. Regardless of the evaluation of its appropriateness, attorney-client privilege will become a meaningful variable in the future landscape of the legal market.