변호사의 이익충돌회피의무

Abstract

An attorney at law owes a client a duty to avoid a conflict between interests of clients or between interests of the client and the attorney. Such duty is derived from attorneys' duty of confidentiality, duty of loyalty, etc. Conflicts between interests of clients can be divided into conflicts of interest in the same case and conflicts of interest in different cases. Conflicts of interest in the same case are subdivided again into conflicts between interests of adversaries in the same case and conflicts between interests of multiple parties. Conflicts of interest in the same case are provided for in subparagraph 1 of Article 31 of the Attorney-At-Law Act and Article 17 (2) of the Code of Ethics of Attorneys at Law. It is proper to interpret that the judgment on whether a case can be determined as the same case for which representation is prohibited by the provisions of subparagraph (1) of Article 31 of the Attorney-At-Law Act shall be based on whether the substance of dispute is the same and that the possibility of conflicting interests is an element of criteria required for determining the scope of opposing parties. The term "opposing parties" in this context refers to parties whose legal interests conflict with one another in a certain dispute, regardless of whether the case is civil or criminal, and such conflicting interests shall be actual. Conflicts of interest between multiple parties in the same case are provided for in Article 18 (4) of the Code of Ethics of Attorneys at Law. Although there is no rule explicitly regulating cases where an attorney seeks to represent two or more parties involved in a case, an attorney owes clients a duty to explain the possibility of conflict of mutual interests, the possibility of withdrawal from representation, etc. If it is impracticable to settle conflicting interests when multiple clients represented by the same attorney have divergent interests, the attorney shall withdraw from representation of all the clients. Even where a conflict of interest in different cases arises in any aspect for which representation is not prohibited by the provisions of Article 31 (1) 2 of the Attorney-At-Law Act and Article 17 (3) of the Code of Ethics of Attorneys at Law, it is proper to restrict representation in such cases,attaching importance to the protection of trust between an attorney at law and clients. If an attorney represents both parties on substantive law in violation of provisions prohibiting such representation, the dual representation shall be ruled as invalid, regardless of whether both parties consent thereto. Where an attorney's litigation conduct constitutes dual representation in violation of provisions restricting such representation,however, such representation is deemed valid to ensure the stability of litigation proceedings and the protection of the opposite party, unless the opposite party objects to the representation until before the closing of arguments at the trial court. Even in representation for a criminal case, it is proper to determine that whether representation was unlawful depends on whether a party did not object to the representation although the party knew or should have known the violation of Article 31 of the Attorney-at-Law Act. For the purpose of legislative theories, it is necessary to distinguish the concept of restriction on representation from that of prohibition of representation, based on the possibility of release by a client's consent. In addition, it is also necessary to resolve many issues arising in the course of interpretation by enacting more definite rules and to systemize such rules as early as possible.