미국 법규상 기업 내 위법행위와 기업변호사 윤리 그리고 그 함의

Abstract

In 2007 a lawyer named Kim Yong Chul, Former Chief Legal Officer in Samsung Group, disclosed a series of alleged violations of laws committed by the Group authorities and his involvement thereof during his term of office, which stirred up a heated controversy over the role and ethics of business lawyers among lawyers and scholars in Korea. This article tries to find out what is the right way in which business lawyers should behave themselves when they come to know the material violation of law committed by the constituents of an organization they represent. By tracing the enactment of the Sarbanes-Oxley Act of 2002 (SOX) and the Part 205 of Code of Federal Regulation and the amendment of the American Bar Association (ABA) Model Rules of Professional Conduct (hereinafter ‘the Rules’), this article shows the scope of the issues and their conclusions, which are expected to give us useful implications in amending the Korean Bar Association (KBA) Ethics Code of Lawyer (KBA Code) Right after the collapse of the Enron, the U.S Congress enacted SOX, to restore integrity to the U.S. capital market by promoting corporate responsibility, accountability and transparency, section 307 of which is dealing with the rules of professional responsibility for attorneys, giving a mandate for the Security and Exchange Committee (SEC) to work out rules to regulate lawyers appearing and practicing before the SEC. The SEC’s Standard of Professional Conduct (17 C.F.R. 205) requires the attorney who knows the evidence of material violation of law to report the evidence to the chief legal officer (mandatory reporting up) and, under some circumstances, permits him to reveal confidential informations to the SEC without issuer’s consent (permissive reporting out). The ABA had strongly protested against the federal-level regulation of the securities lawyers, but in vain. Then it changed their mind to amend the Rules which regulated the lawyers representing organizations, i.e. Rule 1.6 and 1.13. By amending Rule 1.6, the ABA permitted a lawyer to reveal confidential information to prevent the client from committing a crime or fraud or to prevent, mitigate or rectify substantial injury to the financial interest of another in some circumstances. And by amending Rule 1.13, the ABA made it mandatory to refer the violation of legal obligation of the organization’s constituents to the higher authority unless the lawyer reasonably believes that it is not necessary in the best interest of the organization, and made it permissive to reveal confidential information outside organization in some conditions. In sum, the changes in the rules of professional conduct of business lawyers can be summarized into two categories, namely, mandatory reporting up and permissive reporting out. These two can be starting points in considering the amendment of the KBA Code. With the above discussion in mind, the case of Kim is reviewed. This article argues that under the current KBA Code he is not punishable for the reason of the breach of confidentiality duty but that he be subjected to discipline for his violation of several laws. Accordingly it reasonably points out that it is very odd and unhealthy that the lawyer’s direct involvement with the violation of laws has not been fully emphasized or discussed by the lawyers and scholars while there are a lot of talks on the lawyer's duty of confidentiality. Lastly this article draws out some implications from the discussions for the amendment of the KBA Code, emphasizing the importance of internal communications and permissive revelation.