It can be said that the discussion on whether privilege such as Attorney-Client
Privilege(ACP) or Legal Professional Privilege(LPP) under the common law can
be identified or recognized started in earnest in 2016. At that time, there was
a strong criticism from the legal community and the academia regarding search
and seizure on law firms for reasons of cases under investigation by the
prosecution but the prosecution has searched and seized the law firms to which
a lawyer belongs or lawyer’s office which takes the case.
Under such circumstances, attorney-client privilege can be reviewed to protect
it institutionally from the perspective of defense right and social benefits. In other
words, there is nothing more important than the assistance of lawyers to protect
the legitimate rights or interests of a client. From the perspective of social
benefits, clients can consult with lawyers, get appropriate assistance from lawyers
and comply with laws and procedures in the society. Through the attorney-client
privilege, the right to get sufficient assistance from lawyers can be guaranteed.
The method and scope of this research can be divided into four categories
First, this study looks at the institutions regarding confidentiality under the
current law to define the meaning and concept of the attorney-client privilege.
Applicable laws such as the Constitution, Criminal Procedure Act, Civil Procedure
Act, Attorney-At-Law Act, precedent cases, and internal rules of criminal justice
agency and relevant organizations were reviewed and in particular, precedent
studies on the relationship between attorney and client, the meaning of
confidentiality or keeping confidentiality, applicable scope and limitation of the
obligation were analyzed focusing on the lawyer’s duty of confidentiality already
defined by laws.
Second, the results of survey on the current state of infringement of
attorney-client privilege conducted by the Korean Bar Association is presented
to identify the current state of practices regarding attorney-client privilege.
In-depth analysis was conducted on the entity and method of infringement of
attorney-client privilege and the attorney’s response was divided into the need
for correct judgement by the court, raising awareness of the investigation agency,
legislative action, institutional improvement, strict response at the level of
association. In addition, data regarding policy discussions on the attorney-client
privilege held or participated by the Korean Bar Association, opinion on the
proposed bill to revise Attorney-At-Law Act partially to the 19th, 20th and 21th
National assembly for the purpose of adopting attorney-client privilege, questions
and response of the association on the case of infringement of attorney-client
privilege were reviewed and we listened to the opinion of lawyers and experts
regarding the data and opinion sheet through consultations.
Third, this study reviewed laws and currents state of the attorney-client
privilege in many countries around the world to identify comparative implications
as the system is originated from the common law. In particular, the legislative
examples of the US, the EU, European Court of Human Rights, European Court
of Justice, the UK, Germany, France, Netherlands, Belgium, Sweden, Spain,
Canada and Japan were reviewed focusing on the requirements and effects of
the right to refuse testify and the privileges in the search and seizure procedure
and privilege in the digital evidence which are the issues in Korea are covered
in this study.Fourth, this study is intended to demonstrate the need for and legitimacy of
the adoption of attorney-client privilege in the current legal system and practices
and present more elaborate ways for legislation for smooth legislation process
and making the system take root stably. Whether the infringement of
attorney-client privilege is unconstitutional or illegal under the current legal
system and practices and the need for attorney-client privilege in not only
criminal procedures but also civil and administrative procedures were identified.
In addition, the proposed bill to partially revise Attorney-At-Law Act in the 19th,
20th and 21st National Assembly was assessed and analyzed at the level of entity
involved in keeping confidentiality, target, applicable scope and exceptional
cases. Lastly, a bill is proposed to adopt attorney-client privilege which can
improve the current legal system and practices as a conclusion of this study.