변호사의 사적 비행(私的 非行)에 대한 징계 - 정당화 논거에 대한 비판적 검토 -

Abstract

In most countries, including but not limited to Korea, lawyers are responsible for the non-professional misconduct as well as professional misconduct. The discipline for lawyers’ purely private misconduct is not uncommon. But the discipline for misconduct in private affairs requires justification. No matter how wicked, sleazy, and unpleasant the misconduct may be, disciplinary authorities should exercise their power legitimately. How can it be justified to discipline for private misconduct outside of professional practice? The main arguments are as follows: A lawyer’s private misconduct reflects his character that he will commit a professional misconduct in the future; A lawyer’s private misconduct reduces the trust of the public by harming the reputation of lawyers; A private misconduct of lawyer needs to be sanctioned because it is not easy to separate the private misconduct from the public misconduct. But the arguments for disciplining for lawyer’s private misconduct do not make sense because they rest on doubtful normative assertions or poor data quality. On the contrary, the arguments against disciplining for lawyer’s private misconduct are reasonable: There is a continuing risk of arbitrary exercise of disciplinary power; In the case of a severe private misconduct, the revocation of registration of a lawyer has the same effect as if he were suspended or disbarred; It is dubious that the disciplinary authorities make effective use of limited disciplinary resources in order to investigate private sins; Discipline for lawyer’s private misconduct lacks democratic legitimacy because it does not correspond with the fundamental principles of modern democratic legal system e.g. rationality, fairness, double jeopardy, market functioning, client’s autonomy. A lawyer as a human and a citizen has human rights and fundamental rights. Lawyers keep their human dignity and pursue happiness in the performance of their practice. In this vein, the duty of dignity maintenance do not influence every sphere of their lives. Among the non-professional misconduct, a severe public misconduct can be discipline on the ground of violation of duty of dignity maintenance. But lawyer’s private misconduct outside of professional practice can not be justified. The provision of the discipline for non-professional misconduct should be abolished or partially revised from the perspective of de lege ferenda. In the same vein, disciplinary authorities should refrain from discipling lawyer for private misconduct. Ironically legal ethics is not ethics. Legal ethics is about the law, not morality or justice. Lawyer’s duty of dignity maintenance has a rather ethical character. But the duty acquires a legal character by legislating it as a duty of lawyer in the Attorneys-at-Law Act. So, the discipline for lawyer’s private misconduct needs to be dealt with not from the ethical point of view, but instead from the legal point of view. A lawyer can not be sanctioned for the simple reason that the lawyer’s conduct is unethical or immoral. Legal ethics may be a ethics, but that is only a professional ethics.