1) This study is the second report in a series on the unlawful practice of law in South Korea. It investigates the unlawful practices that incumbent prosecutors or judges grant private requests from their retired seniors, called “jeon-gwan ye-u” and discusses countermeasures against these preferential treatment of the attorneys who retired from public office. This study continues and complements the previous report on the corruption and unlawful practices in the legal profession.
2) We conducted online surveys of lawyers and clients to understand the reality of the preferential treatment of former judges and prosecutors in Korean society.
We also conducted in-depth interviews with some of the participants. The surveys and interviews provide information on direct and indirect experiences of corruption involving attorneys retired from public office, those attorneys’ fee, clients’ preference for those attorneys, and opinions on how to control those unlawful practices.
3) The section on countermeasures first describes the history of the systems designed to control unlawful practices involving former official attorneys. In addition, it discusses the most recent legislative trend in the National Assembly and legislative cases in the U.S., U.K., Germany, and Japan.
2. Literature Review
1) There is a small number of empirical studies on preferential treatment of attorneys who were judges or prosecutors, and the number of studies confirming the existence of such phenomena are much smaller. The scope of potential research, however, is very wide because there are many different stages - trial, investigation, prosecution, review of warrant, bail, and etc - where corruption could happen, Moreover, we can find diverse research subjects and methods regarding these issues. Several studies identified some unlawful practices of preferential treatment, but few study proves, even indirectly, the nonexistence of such practices.
2) Some significant research findings show actual practices of the preferential treatment, but the amount of research is insufficient. Because it is relatively easy to research preferential treatment by judges, most previous studies are concentrated in this area while preferential treatment by prosecutors is largely neglected. We need to fill these gaps in the research area of preferential treatment of ex-official attorneys.
3. Summary of the Findings from the Client Survey
1) Clients’ high preference for ex-official attorneys : The percentage of ex-official (former judges or prosecutors) attorney appointed by clients is 50.1%, and it was 47.4% in the 2018 Law Broker Study. The percentage of lawyers in the Korean Bar Association who were former judges or prosecutors is only 15%.
In spite of this small portion of ex-official attorneys, the percentage reaches almost 50% in our client sample. This shows that clients highly prefer ex-official attorneys and leads to the conclusion that ex-official attorneys have more cases than other attorneys on average.
2) Ex-official attorneys’ mean fee reported by clients : On average, attorneys who were prosecutors or judges had twice the amount of fees than those who did not hold public office. Those who were in high positions and retired less than a year ago had almost three times more fees than those who did not hold public office.
3) To summartze the client survey, we find ex-official attorneys had 1- more cases, 2- more fees, and 3- more extra earnings on average. We can easily infer from these three findings that there should be a great mean fee gap between ex-official attorneys and other attorneys.
4. Summary of the Findings from the Lawyer Survey
1) Experience of the preferential treatments of ex-official attorneys : The precentage of lawyers who report their experiences of the preferential treatment of ex-official attorney in the last 10 years is 21.8%, 20.6% in the last five years, and 5.6% in the last year. Female lawyers, young lawyers, and lawyers who have not held public office, the number of which is increasing in the lawyer market, tend to experience more preferential treatment of ex-official attorneys. It is therefore likely that grievances against preferential treatment will be aggravated in the future.
2) Proportion of Criminal Cases with Preferential Treatment : It turns out that lawyers experienced preferential treatment of ex-official attorneys primarily in criminal cases (72.5%). They also report that they experienced those special treatments more at the prosecutor investigation stage (51.9%) than the trial stage (34.2%). This finding reveals the prevalence of the unlawful practice in criminal cases and among attorneys who were former prosecutors.
3) Opinion on Extending the One Year Period of Restriction on Acceptance of Cases : The current Attorney-At-Law Act imposes restrictions on ex-official lawyer accepting cases for one year from the date on which he/she retired from office. 70.8% of lawyers in the sample respond that this one year restriction period should be extended, and 46% of them think that three years would be appropriate.
5. History of Countermeasures against the Unlawful Practices of Preferential Treatment
1) We explored institutional and legislative efforts to prevent the preferential treatment of ex-official attorneys during the 70-year period after the government formation in 1948. The recognition of the problem and serious efforts to improve the system to eradicate the corruption started in the mid-1990s. The establishment of civilian government in the early 1990s provoked public demand for strong reforms of the entire justice system. Moreover, remarkable economic development also expanded the judicial market. These changes piqued great interest in the problem of unfair practices in which incumbent prosecutors or judges grant private requests from their retired seniors.
2) In spite of the various efforts to eradicate the unlawful practices, “jeon-gwan ye-u” is still prevalent, as evidenced by the 2016 “Jung Woon-ho Gate”.
3) Even though the supreme court, the ministry of justice, the supreme prosecutors’ office, and the Korean Bar Association should work together to solve the problem of “jeon-gwan ye-u”, only the supreme court and the Korean Bar Association have followed through with any countermeasures. The ministry of justice and the supreme prosecutors’ office should participate in these efforts more actively.
6. Recent Legislative Trend
1) The partial amendment of the Attorneys-at-Law Act intends to extend the case-taking prohibition period and tighten the current sanctions. Other bills related to the restrictions on types and methods of case-taking continues to be proposed.
2) Partial amendment of the Public Service Ethics Act concentrates on the restriction of employment and the extension of the prohibition period. It must be noted that this restriction is not limited to the countermeasures against “jeon-gwan ye-u”.
3) We identify some proposals of a bill that intends to induce the voluntary abandonment of “jeon-gwan ye-u” by providing special incentives for the ex-official attorneys who were the former highest ranking judges.
4) Some additional bills containing countermeasures against “hu-gwan ye-u” were also proposed. These bills also narrowly focus on the period restriction, so they need to consider other aspects of the issue.
7. Related Legislation Cases in Other Countries
1) The U.S., U.K., Germany, and Japan have different cultures and justice systems from ours and do not have such problems as “jeon-gwan ye-u.” It is therefore difficult to perceive any implications from the legislation cases of theses countries.
2) What we can learn from these countries is the need for providing an environment that discourages judges and prosecutors from practicing law after retirement by guaranteeing retirement age and income.
8. Conclusion and Policy Suggestions
A. Conclusion from the Survey Findings
1) In summary of previous studies and current survey research, we conclude that “jeon-gwan ye-u,” the preferential treatment of ex-official attorneys, exists and is serious problem. The attorneys who are newly retired from public offices take 1- more cases, 2- more fees, and 3- more extra charges than other attorneys on average.
2) The marked gaps in the number of cases taken and the amount of fees must be due to “jeon-gwan ye-u.” It is hard to accept some judges’ and prosecutors’ argument that these abnormal differences are mainly due to clients’ prejudice or deceits by law brokers. These are only secondary factors and those effects are only partial.
3) If it is true that clients pay more fees for ex-official attorneys even though there is no “jeon-gwan ye-u,” we should empirically prove that there is no preferential treatment of ex-official attorneys and actively campaign to enlighten those would-be clients.
4) “Jeon-gwan ye-u” is more prevalent and likely to happen in criminal cases and in the activities of prosecutors. The supreme court and the Korean Bar Association have however taken initiatives to formulate countermeasures against “jeon-gwan ye-u.” We argue that the ministry of justice and the supreme prosecutors’ office should make more aggressive efforts to improve the system.
5) The preferential treatment of the attorneys who were former prosecutors is substantially effective in pre-trial stages. This is mainly because prosecutors have a great deal of discretion in prosecuting. Reasoning of judgment is clearly revealed in writing. The decision not to prosecute, however, can be made for unclear reasons. This fact can be related to the leverage ex-prosecutor attorneys can exercise.
B. Some Suggestions for Countermeasures against “jeon-gwan ye-u”
1) There are several options to regulate the preferential treatment of ex-official attorneys through the Attorneys-at-Law Act. These options can be organized by their severity of regulation as below.
In this figure, the arrow direction signifies strong regulations and the opposite arrow direction means the countermeasure can be realistically implemented in a short period of time.
2) Long-Term Measures: As in the cases of other countries, the most fundamental countermeasure against “jeon-gwan ye-u” are to ban former judges and prosecutors from practicing and taking cases on the premise that judges and prosecutors are guaranteed to work for their lifetime. There are, however, too many limitations and obstacles to implement them in the near future.
3) Short-Term Measures
1- It is often discussed and not a new measure but listing specific restrictions on case-taking and strengthening penalties should be very effective.
2- Every attorney-at-law shall be prohibited from defending or acting on behalf of his/her client without submitting a letter of designation of counsel or a letter of attorney to the relevant court or investigative agency. Lawyers strongly want to strengthen penalties for violating this regulation. It is hard to uncover the violations but still this measure is necessary measure to deter those unlawful practices.
3- An attorney-at-law retired from public office shall submit retainer agreement data regarding cases that he/she has accepted and reports on case results. A person who violates this regulation shall be punished by an administrative fine. To make this measure more effective and realistic, criminal penalties should be considered. Moreover, the sanctions on law firms need to be strengthened when associate ex-official attorneys violate the regulation.
4- To secure the effectiveness of the restriction on employment of retired public officials in the Public Service Ethics Act, the violator should be sanctioned regarding the practicing certificate. It is necessary to revise the clauses of the qualifications for attorneys-at-law in the Attorney-At-Law Act directly or the clauses in the Public Service Ethics Act to exclude monetary penalties only when ex-official attorneys violate the rules.
5- The Legal Ethics and Professional Conduct Council must play a larger roles to ensure the effectiveness of the sanctions in the Attorney-At-Law Act. It can provide some procedures such as mandatory courses on the Attorney-At-Law Act for newly practicing ex-official lawyers regarding the sanctions for unlawful case-taking practices.
4) Direction of Revision of the Public Service Ethics Act
1- The Public Service Ethics Act sets the period restriction on the employment of retired public officials. He/she cannot be employed within three years from the time of his/her retirement by any institutions closely relevant to the duties of the department or agency with which he/she has been affiliated for five years before his/her retirement under the current Act. We may consider the extension of the three-years restriction period after retirement to five years.
2- We can also consider the exclusion of a monetary penalty for violating the restriction on the employment of retired public officials to make the revocation of the registration clause in the Attorney-At-Law Act realistic and effective.
5) Other Suggestions; Evidence-Based Policy Making
Countermeasures against “Jeon-gwan ye-u” shoud be based on empirical evidence. We need to utilize the large data collected and stored by courts and prosecutor offices. To do so, information on lawyers’ past positions should be entered into the Korean Information System of Criminal Justice Services (KICS). This will have an effect of preventing “jeon-gwan ye-u” and be useful tool for evidence-based policy making.