변호사의 이익충돌 회피의무에 관한 고찰 - 변호사법 제31조 제1항 제1호 수임제한의 요건과 효과를 중심으로 [대상판결: 대법원 2024. 1. 4. 선고 2023다225580 판결]

Abstract

The Supreme Court declared on January 4, 2024, that the attorneys belonging to the Kim and Chang law firms separately consulted the plaintiffs and defendants, the parties to the conclusion and implementation of the stock transfer contract, can be regarded as a bilateral agency. In principle, the appointment is restricted under Article 31 (1) 1 of the Lawyers Act. However, the judicial effect of the stock purchase contract under the above advice can be recognized only when the person has permission, and whether or not the person who asserts the validity shall bear the responsibility of asserting and proving in light of the legislative purpose to avoid the risk of conflict of interest, and that it is possible by implicit permission or post-confirmation in addition to the stated prior permission (2023Da225580 ruling). This paper is a commentary on the above ruling. Article 31 (1) 1 of the Lawyers Act stipulates the absolute limitation of mandate for cases delegated by the other party to the case that has accepted the mandate. The scope of the case that has been consulted and agreed to accept the mandate here means receiving legal review or consultation for a solution to the content of the specific case, which requires the formation of a lawyer-client relationship and having specificity to the extent that the attorney’s various obligations to the client are borne. The Supreme Court’s decision is considered valid because it will include litigation cases as well as advisory cases in which the parties have performed or decided to do assistance with the maturity of disputes to be resolved in specific and specific legal relations. Regarding the effect of the restriction on mandate, the above ruling follows the so-called objection theory as above, but this is a civil law law. As long as the Supreme Court says that the legislative purpose of the restriction on mandate under Article 31 (1) 1 of the Lawyers Act is to avoid the risk of conflict of interests of lawyers, the person’s permission to make an exceptionally valid two-way representation or two-way appointment, which is invalid in principle, is not sufficient with an implied permission, and the attorney shall fully explain the legal meaning of the permission, provide necessary information, and then require consent to be explicitly confirmed by the delegator.