변호사의 비밀유지의무

Abstract

The lawyers’ duty of confidentiality is primary and fundamental to protecting a client’s dignity and maintaining the legal system. The lawyers’ duty of confidentiality is stipulated in Article 26 of the Attorneys-at-Law Act and Article 47 of the Attorneys-at-Law Ethics regulation. In order for a client to freely request legal advice and consult his/her case to a lawyer, a lawyer is not only prohibited from disclosing confidential information of his/her client, but a lawyer’s right to refuse any demand of disclosure of confidential information should also be acknowledged. The discussion on this subject has been mainly aimed at granting Attorney-Client Privilege. The Attorney-Client Privilege is the essence of privilege of denial of testimony as a rule of evidence to allow the disclosure of the contents of the communication between lawyers and clients. Under the current law, there are no statutory rules that grant such right of secrecy, and the Supreme Court remains passive, however, such right should be acknowledged in light of the principle of the Constitution and the universal legislative trend. The lawyers’ duty of confidentiality may be exempted in case of client’s consent, or in defense of a lawyer’s own rights, or by reason of any significant public interest. Where a lawyer should be exempted from the duty of confidentiality to advocate his/her own rights, such exemption shall be limited to cases where a dispute has arisen in connection with the lawyer’s representation of his/her client. Since it is in a lawyer’s sole discretion to determine a ground for exemption from the duty of confidentiality by reason of any significant public interest, it is necessary to categorize grounds for exemption from the duty. The US Model Rules of Professional Conduct (1.6) (b) may be a reference to it. The Financial Action Task Force on Money Laundering (FATF), of which Korea is a regular member, recommended its members to impose a duty to prevent money laundering upon lawyers by legislation. Since it is difficult for such legislation to harmonize with the status or ethical system of lawyers, we need a discussion of public opinion and a systematic review. And the duty to report should be imposed only where an illegal money transaction involves a crime related to another’s life or body, which is likely to occur in the future, even where such legislation is inevitably enacted.