Back to Fundamentals: A Closer Look at a Seoul High Court’s Failed Attempt to Introduce Attorney-Client Privilege in Korea
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In light of certain recent events, such as a search and seizure conducted at one of the major law firms by the Prosecutor’s Office, vigorous discussion has surfaced in South Korea concerning the absence of and need for the so-called “legal professional privilege” or “attorneyclient privilege.” In fact, back in 2009, “attorney-client privilege” almost found its way into Korean jurisprudence, when the Seoul High Court affirmed a lower court’s finding that US-style attorney-client privilege can be derived from the Korean constitution’s “right to counsel,” existing laws, and the fact that attorney-client privilege exists in many other jurisdictions. This case, however, was later reversed by the Supreme Court. A careful examination of each of these grounds for attorney-client privilege, with the analytical tools provided by the body of case law and scholarship concerning attorney-client privilege in the US, makes clear why these alleged grounds for finding such a privilege in Korea fell short of expectations. Amidst recent discussions, which often revive these same grounds that previously failed, a straightforward approach reviewing the fundamentals of attorney-client privilege appears to be all the more necessary.
Abstract
In light of certain recent events, such as a search and seizure conducted at one of the major law firms by the Prosecutor’s Office, vigorous discussion has surfaced in South Korea concerning the absence of and need for the so-called “legal professional privilege” or “attorneyclient privilege.” In fact, back in 2009, “attorney-client privilege” almost found its way into Korean jurisprudence, when the Seoul High Court affirmed a lower court’s finding that US-style attorney-client privilege can be derived from the Korean constitution’s “right to counsel,” existing laws, and the fact that attorney-client privilege exists in many other jurisdictions. This case, however, was later reversed by the Supreme Court. A careful examination of each of these grounds for attorney-client privilege, with the analytical tools provided by the body of case law and scholarship concerning attorney-client privilege in the US, makes clear why these alleged grounds for finding such a privilege in Korea fell short of expectations. Amidst recent discussions, which often revive these same grounds that previously failed, a straightforward approach reviewing the fundamentals of attorney-client privilege appears to be all the more necessary.
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