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KICJ Research Reports

Study on the Reforms for the Criminal Justice System based on Fairness and Human Rights(IV): Lawyer's professional Ethics and Material Truth in Criminal Proceesings 사진
Study on the Reforms for the Criminal Justice System based on Fairness and Human Rights(IV): Lawyer's professional Ethics and Material Truth in Criminal Proceesings
  • LanguageKorean
  • Authors Yookeun Kim, Jeongyeon Kim, Jonghwan Kim, Yungyeong Jeon, Sangsu Lee, Yeook Son
  • Date December 31, 2022
  • Hit294

Abstract

1. Issues Surrounding Lawyers’ Ethics 


Trust between an lawyer and a client is one of the prerequisites for meaningfully protecting the right to counsel of a suspect or a defendant. This trust is often affected by the conflict between the lawyer’s obligations to the client and his/her obligations as a public figure.


 Specifically, an lawyer has the duty of diligence and confidentiality toward his/her client, which may conflict with the obligations that the lawyer has to observe as a public figure. Another issue inextricably related to the lawyer’s professional ethics is whether legal aid to vulnerable groups should be left to the state, when we understand the aid as a form of judicial welfare naturally provided to people who lack judicial access under the principle of the equality of arms under the adversarial litigation system.


Also related is the issue of how conflicts of interests should be regulated in order to protect people’s right to fair trial.


These issues and their solutions are predicated on how independent and neutral lawyers and the bar association are from the state, and how autonomously they operate in accordance with their own rules. A strong state intervention into lawyers and the bar association may thwart the right of a suspect or a defendant to an lawyer as the passive means of defending against the state power.


By reviewing how different countries have tacked these issues through legislations, we will be able to draw out their implications for Korea.


2. Attorney Ethics and Criminal Responsibility in Major Countries 


1) Attorney Status 


The lawyer system of most countries share a number of common characteristics. They emphasize lawyers’ professional independence on account of their expertise, and includes a bar association that develop their own codes of conduct. However, as all legal systems do, they vary depending on the social background of each country, and different judicial systems emphasize different aspects of the lawyer’s status and obligations, which results in different responses to violations of obligations. The American adversarial judicial system stresses the duty of an lawyer to give his/her best to defending the claims and interests of the party represented by the lawyer. Granted, an lawyer has the duty of candor. However, in the adversarial litigation system, the duty takes on a more passive form that focuses on claiming and proving facts favorable for the litigant. In fact, in the adversarial system, litigants are given a chance to ‘discover’ facts related to the case, which means that an lawyer is not required to disclose unfavorable facts during the proceedings.


In contrast, the inquisitorial litigation system in Germany stresses the role of an lawyer as a judicial institution as well as a protector of the client, emphasizing the role of an lawyer to ensure a fair and legitimate trial. However, even in the inquisitorial system, the role of an lawyer as a judicial institution is a passive one restricted to refraining from disrupting the normal adjudicational functions. In Germany, as in the United States, an lawyer is not obligated to disclose unfavorable facts about his/her client in a litigation.


France maintains strict moral requirements for lawyers. To be admitted into the bar, a lawyer should have no prior record of prior criminal punishment, disciplinary actions, or even administrative penalty, and should not have filed for bankruptcy. Local bar associations review lawyers’ moral conducts, and their code of conduct apply to lawyers well after their admission to the bar. In fact, French lawyers are expected to act as a ‘person of honor (l'homme d’honneur) in their professional capacity.


In Japan, an lawyer has three statuses: counsel for the client; protector of the client; and protector of public interests. In the country, an lawyer serves as a counsel to protect the client’s human rights only within the scope prescribed by the laws and regulations.


2) Duty of Confidentiality 


To build trust and facilitate communication between an lawyer and his/her client, an lawyer should not disclose the secrets of his/her client that the lawyer obtained in the course of his/her duty. This duty of confidentiality is essential to the lawyer system, and thus constitutes an important part of the lawyer ethics. However, many countries recognize exceptions to confidentiality.


In the United States, an lawyer has the right to refuse testimony, which is understood as a type of an evidence exclusionary rule. In fact, it is understood as the ‘client’s’ right to prevent the lawyer from disclosing his/her secrets. For this reason, the right to refuse testimony survives a lawful termination of the representation between the lawyer and the client, and even the death of the client. An lawyer, in principle, is obligated to exercise his/her right to refuse testimony for the interest of a deceased client. Only a client may waive his/her lawyer’s right to refuse testimony. However, the Model Rules of Professional Conduct of the American Bar Association (ABA Rules) provide for specific exceptions to the duty of confidentiality, including: disclosure with the client’s informed consent; implied disclosure authorized in order to carry out the representation or the disclosure; disclosure necessary to to prevent reasonably certain death or substantial bodily harm; disclosure necessary to mitigate or prevent substantial injury to property; disclosure in case of a controversy between the lawyer and the client; disclosure necessary secure legal advice about the lawyer's compliance with the ethics rules, and disclosure necessary to comply with other law or a court order.


In Germany, both the Federal Code for Lawyers (Bundesrechtsanwaltsordnung, BRAO) and the Rules of Professional Practice (Berufsordnung fur Rechtsanwalt, BORA) include provisions on confidentiality. The German version of the duty of confidentiality includes active protection of the client’s secrets, which means all personnel assisting a lawyer is also obligated to maintain confidentiality. A lawyer who whishes to engage a service provider is required to sign a written agreement stipulating that an infringement on confidentiality is punishable under the criminal law, which allows the lawyer to disclose certain facts subject to confidentiality within the scope required to use the services. In the German justice system, confidentiality not only forms the basis of the country’s lawyer system, but also works as an element that restricts the discovery of truths.


A lawyer’s duty of confidentiality is protected by a lawyer’s right to refuse testimony (Article 53 (1) 3, German Code of Criminal Procedure (Strafprozeßordnung, StPO), the prohibition of objects subject to the right to refuse testimony (Article 97m, StPO), the restriction on collection of information on communication and access by a person who refuses testimony (Article 100g (4), StPO), and the restriction of investigation of a secret holder who has the right to refuse testimony on professional grounds (Article 160a, StPO).


However, Germany also recognizes exceptions to the duty of confidentiality. First, the criminal law recognizes an exception to confidentiality. Article 138 of the German Criminal Code (Strafgesetzbuch, StGB) provides for the crime of ‘failure to report planned offences.’ In cases where a lawyer has credible information about the planning or the commission of high treason, murder, or other serious crimes at a time when the crime can still be prevented and fails to report it to the public authorities or to the person so threatened, it is punishable under the StGB. Second, an exception is granted if the client consents to the disclosure. However, even with the client’s consent, a lawyer should still comply with the duty of confidentiality if the client’s secrets also constitute a third party’s secrets. Third, in certain cases, the duty of confidentiality may not be recognized under the principle of interest balancing and protection of legitimate interests. Lastly, BORA adopts the concept of ‘social reasonability’ to allow the disclosure of secrets if the disclosure is objectively consistent with the customary behaviors generally accepted in the handling of duties at law offices.


French lawyers are also prohibited from disclosing the secrets that they learned in their professional capacity under the National Internal Regulation (Règlement Intérieur National, RIN), except for the cases verified and disclosed necessary for defending the client at the court or those required or authorized by the law. In contrast, a client may freely disclose or reveal conversations held in confidence. The French Code of Criminal Procedure (Code de Procedure Pénale, CPP) has the same provision on the protection of lawyers’ professional secrets as the ones included in the French law on lawyers, which has been understood to indicate that a lawyer’s professional duty of confidentiality is stipulated as one of the underlying principles of the country’s criminal justice procedures. The CPP provides for a lawyer’s right to refuse testimony during preliminary investigations and hearings (Article 109 (1) for preliminary investigations; Article 326 (2) for hearings at assize courts (cour d’assises); and Article 437 (1) for hearings at (tribunal correctionnel)). A search and seizure against a lawyer’s office or domicile may not be conducted only by a magistrate (magistrat) and not by a police judicial officer, must be attended by the president of the bar association (bâtonnier) or his/her representative. The attending president, etc. may object to the search and seizure at the site if he/she deems the search and seizure to be illegal because the seized object or is protected by professional confidentiality. In addition, no tranion may be made of any correspondence with a defense counsel relating to the exercise of the defendant's rights protected as professional confidentiality, and all such tranions are invalid (CPP, Article 100-5 (3)). No interception may be made on a telephone line connecting the office or domicile of a defense counsel unless the president of the bar association is informed of this by the investigating judge (CPP, Article 100-7 (2)). 


France recognizes the duty of prudence (devoir de prudence), which means that a lawyer should not advise solutions to the client if he/she cannot assess the described situation, determine whom the advices or actions are for, or identify the client. If a lawyer is involved in a criminal act, it would naturally make him/her an accomplice. Therefore, a lawyer should comply with the duty of prudence by persuading the client against such an act and, if the client does not listen, remove him/herself from the case. However, the duty of prudence does not require a lawyer to report a client who he/she suspects or knows is likely to commit a crime. In fact, the crime of ‘failure to report a crime’ under Article 434-1 of the French Penal Code (Code Pénal) does not apply to lawyers by virtue of the principle of professional confidentiality. 


In Japan, a lawyer’s duty of confidentiality includes the secrets of third parties (Attorneys Act, Article 23). The duty of confidentiality is stipulated in Article 134 of the Penal Code and Articles 105 (proviso) and 149 (proviso) of the Code of Criminal Procedure. However, exceptions to confidentiality are recognized if so stipulated in a law or justified by a legitimate reason. Legitimate reasons include the client’s consent, disclosure necessary for a defense counsel’s self-defense, or disclosure necessary for public interest. 


An attorney who breaches his/her duty of confidentiality may be subject to a disciplinary action. In the United States, all violations of the lawyer’s professional duties under the ABA Rules may be subject to a disciplinary action. These violations include attempted violations, aiding and abetting others violating the duties, or using others’ actions to violate the rules. In Germany, an attorney violating confidentiality may be punishable under the provision on violation of private secrets under the StGB, as well as subject to a disciplinary action under the BRAO. According to Article 203 (1) 3 of StGB, a lawyer who discloses another person’s secret that was entrusted or otherwise made known to him/her without authorization is punishable by imprisonment for a term not exceeding a year or a fine. Violations of confidentiality subject to disciplinary actions under BRAO include violation by negligence as well as willful violence. In contrast, the violation of private secrets under StGB at least requires dolus eventualis. 


In French, an attorney may be subject to a disciplinary action if he/she violates any of the professional principles, rules, or duties (NIR, Article 1.4). An attorney who discloses a client’s secret without authorization may be punishable under the provision on disclosure of secrets (Penal Code, Article 226-13). 


Similar provisions exist in Japan as well; a lawyer who discloses secrets without permission may be subject to a disciplinary action, or punished under Article 134 of the Penal Code (disclosure of secrets).


3) Lawyer’s Duty to Avoid Conflicts of Interests


 In case of a possible conflict of interest between clients or a client and a lawyer, the lawyer is not allowed to represent or advise any of the clients. In the Unite States, Article 1.8 of the ABA Rules provides a detailed list of ten conflict of interest cases. An attorney who violates his/her duty of confidentiality may be subject to a disciplinary action.


In Germany, BRAO and BORA prohibit representing or advising a client whose interests conflict with the lawyer’s interests. Article 146 of StPO also prohibits lawyers from representing more than one person accused of the same offence or appear in a single set of proceedings for more than one person accused of different offences (prohibition of joint defense). The prohibition of joint defense applies to all stages of criminal procedures including investigations. If a lawyer is found to have been appointed as a counsel in violation of the provision, the lawyer is dismissed effective immediately. In particular, a lawyer who violates the duty to avoid conflicts of interests may be punished for ‘betrayal of client’ under StGB as well as a disciplinary action. Article 3 (4) of BORA requires an attorney to notify any conflict of interests to a client upon becoming aware of the conflict, and terminate all representations in the relevant case. In other words, the provisions prevent a lawyer from continuing to represent the litigant who is more favorable to the lawyer. If the lawyer does not terminate the representation even after becoming aware of the conflict, the lawyer’s violation of the duty against conflicts of interests becomes a deliberate violation of the said duty, which is punishable under Article 356 of StGB (Betrayal of Client). 


Similar provisions apply to French lawyers as well; unless otherwise agreed in writing by the parties, a lawyer may not represent any client with a possibility of a conflict of interest or a violation of the professional duty of confidentiality. In cases where a lawyer may disclose secret information received from a client or any information obtained regarding the case may work favorably for another client, the lawyer may not represent the other client. 


In Japan, in case of representing multiple clients in a case with a possible conflict of interests among them, if a conflict of interests actually occur among the clients, the lawyer is required to notify each client of the conflict and take appropriate actions (Basic Standards of the Responsibilities of an Attorney, Article 42). 


4) Duty of Objectivity (Duty of Candor) 


Criminal procedure serves the purpose of discovering actual truths through due process. This purpose is connected with the status of a lawyer who represents a defendant in a criminal case. In such cases, a lawyer holds the dual positions of a protector of the client and a judicial institution. It means that a lawyer is required to protect the client’s interests while ensuring a fair and appropriate trial. This requirements serves as the source of another professional duty of lawyers other than the duty of conflicts of interests and the duty to avoid conflicts of interests: the duty of objectivity (duty of candor). /The ethical codes of conduct in the United States and France do not include explicit provisions on the duty of objectivity. In contrast, the German BRAO specifically provides for ‘duty of objectivity’ (Sachlichkeitsgebot), which means ‘prohibition of lies’ (Verbot der Lüge), as a basic duty of lawyers. This duty of objectivity, or duty of candor, best represents the status of lawyers as a judicial institution in Germany. 


According to Article 43a (3) of BRAO, “A lawyer may not behave in an unobjective manner in the exercise of his or her profession. Conduct is in particular deemed to be unobjective where it involves the conscious dissemination of untruths or such disparaging statements which other parties or the course of proceedings have given no occasion to make.” The dissemination of ‘untruths’ must be deliberate, ‘deliberate’ meaning that the lawyer intentionally disseminated untruths, beyond simple belief that such untruths can be disseminated. However, despite the duty of objectivity, a lawyer is allowed to remain silent on an incriminating situation for the client even if his/her silence distorts the truth (as judicial institutions and investigative agencies are not always just). A lawyer is also not required to clarify uncertain facts or suspicious information of the client. 


In addition, with regard to a lawyer’s duty of objectivity, Article 138a of StPO provides for the exclusion of defense counsels. For a lawyer who serves as a defense counsel, the exclusion means that he/she can no longer participate in the criminal proceedings. A defense counsel shall be excluded from participating in proceedings if he is strongly suspected or suspected to a degree justifying the opening of the main proceedings: of being involved in the offence which constitutes the subject of investigation; of abusing communications with an accused who is not at liberty for the purpose of committing offences or seriously endangering the security of a penal institution or; of having committed an act which, in the event of the accused’s conviction, would constitute handling stolen data, aiding after the fact, obstruction of prosecution or punishment, or handling stolen goods. 


In Japan, commentators are divided over the issue of whether a defense counsel has the right of candor in a criminal case, that is, whether a defense counsel may claim the innocence of the client even when he/she knows the client to be responsible, or claim the client’s guilt when he/she knows the client to be innocent. The commentators who support a defense counsel’s duty of candor are divided into two groups. Some of them maintain that a defense counsel should actively contribute to finding the truths in criminal proceedings, while others refute that a defense counsel is only required to abstain from disrupting the court’s fact-finding efforts. 


5) Prevention of Money Laundering


 The German Anti-Money Laundering Act (Geldwäschegesetz, GWG) includes lawyers acting under authorization from clients in the list of people required to prevent money laundering. GWG requires lawyers and other professionals to do a background check on a client or report the client if they find anything suspicious about the client’s assets. If the actual owner of the assets is somewhat economically different from the client, a German lawyer is required to perform a background check, describe the client’s background, continuously monitor his/her business relations, and check whether the the person politically exposed to the client or the actual owner is an important figure, as part of the lawyer’s general duty of care. Local bar associations supervise the lawyers’ performance of their anti-money laundering duties. A violation of the duty by a willful act or gross negligence is punishable by a fine.


In addition, money laundering is punishable under Article 261 of StGB. However, in order to ensure free performance of defense counsel’s duties, the first sentence of Article 261 (6) stipulates that a defense counsel is not punishable for money laundering even if he/she obtains the object resulting from the illegal act by gross negligence, or knew the origin of the object at the time of acquiring it, or use it for him/herself or a third party (StGB, Article 261 (6), first sentence). In addition, in cases where a defense counsel accepted fee for his/her work, the counsel is deemed to have acted with intent only if he/she had reliable knowledge of its origin at the time of accepting the fee (StGB, Article 261 (1), third sentence).


France also confers obligations regarding money laundering and financing of terrorism to lawyers. A lawyer has a anti-money laundering duty of care toward his/her clients, which includes inquiring the customers and demanding submission of s in some cases. If a lawyer confirms that his/her client is involved in money laundering, he/she is required to report the crime to the Tracfin (Traitement du renseignement et action contre les circuits financiers clandestins). 


6) Disciplinary Actions 


In the United States, the ABA Rules provide the general provisions on the obligations and disciplinary actions of lawyers. All violations of lawyers’ obligations and other rules under the ABA Rules are subject to disciplinary actions. In typical cases, the state supreme courts announce ethical codes and supervise disciplinary actions against lawyers. A disciplinary procedure is initiated by the reception of a complaint. Complaints are handled by ‘grievance committees’ of state bar associations authorized by state courts. If the complaint is not dismissed and a hearing commences, the lawyer against which the complaint was filed is duly granted all procedural rights. However, the evidence exclusionary rules do not apply to disciplinary proceedings, and proving the lawyer’s violation only requires a preponderance of evidence, which is less strict than proof beyond reasonable doubt. Disciplinary actions include public actions such as disbarment, suspension, and reprimand, and non-public action (warning). Lawyers may be allowed to practice law under certain conditions, which may be imposed on its own, at the same time as a reprimand or warning, or following a suspension. A lawyer may file an objection against a disciplinary action with a state supreme court. The disciplinary standards under the ABA Rules are stipulated separately for general considerations and mitigating/aggravating factors. The Rules also divide violations of lawyers’ duties into five categories (violation of duties toward clients, violation of duties toward the public, violation of duties toward the judicial system, violation of duties as law professionals, and violation of duties regarding prior disciplinary actions), each with separate disciplinary standards.


In Germany, all provisions on disciplinary actions have been enacted as ordinances (Ordnung). In addition to BRAO, Germany defines specific professional duties of lawyers under the Rules of Professional Practice (BORA). Second, in principle, disciplinary actions are taken by judicial institutions. Except for disciplinary actions against minor violations, which are taken by the German Federal Bar (Bundesrechtsanwaltskammer, BRAK), the Lawyers' Court (Anwaltsgericht) is the primary institution charged with disciplinary actions against lawyers. The judges at the Lawyers' Court are honorary judges appointed by the state among lawyers nominated by the executive departments of the regional bar bar association. They serve five-year terms, can be re-elected, and holds the same status as regular judges. Third, in Germany, the provisions on criminal procedures in the German Judiciary Act (Deutsches Richtergesetz, DRiG) and StPO apply to disciplinary proceedings against lawyers. When a prosecutor files an indictment for a disciplinary action, the Lawyers' Court decides whether to proceed with the indictment. The Lawyers' Court commissions or requisitions a judge to investigate the evidence, and determine whether the indicted lawyer is guilty, and whether the proceedings should proceed. An appeal can be filed against an Lawyers' Court decision with the High Lawyers' Court like any other court decisions. An appeal against a High Lawyers' Court decision can be filed with the Federal Supreme Court. 


In France, regional bar associations supervise lawyers, with a power to issue disciplinary actions against lawyers. A regional bar association is understood to serve as a judge in matters regarding its members, albeit under the control of the Courts of Appeal (cour d’appel). The disciplinary procedure consists of three instances. The first instance procedures used to be handled by councils within regional bar associations. Today, they are handled by separately established regional disciplinary committees under the supervision of the Courts of Appeal. The second instance procedures are handled by the Courts of Appeal. If a lawyer objects to a decision by the disciplinary committee that presided over the first instance procedure, he/she can be tried by a professional judge. An appeal may be filed against a Court of Appeal decision with the Court of Cassation (Cour de cassation). In France, a lawyer may be disciplined not only for a violation of his/her professional codes, but also all actions that go against their integrity, reputation, or dignity. This applies to a lawyer’s behaviors in his/her private as well as professional life. France disciplines lawyers for what they do in their private life because their private behaviors affect the country’s lawyer community in its entirety. A French lawyer may be also subject to a disciplinary action if he/she violates regulations on litigation procedures (Attorney Act, Article 25-1). If a lawyer abuses another person by words, gestures or threats, written s or pictures of any type not publicly available, or the sending of any article to a judge or prosecutor, a juror or any other member of a court acting in the course of or on the occasion of the discharge of his/her office and liable to undermine his/her dignity or the respect owed to the office which he/she holds, it constitutes a crime under Article 434-24 of the Penal Code.


In Japan, in cases a lawyer may be disciplined in case of violating the Attorneys Act or the bylaws of a regional bar association or the Japanese Federation of Bar Associations (JFBA). The Attorneys Act also disciplines lawyers who undermine the order or credibility of a regional bar association or behave in a way that undermines the dignity of a lawyer either in or outside of their professional capacity (Attorneys Act, Article 56). According to precedents, behaviors undermining a lawyer’s dignity include, among others: running a law office within a store run by the lawyer’s parents; engaging in unruly behaviors after intoxication; refusing to take a breath test; falsely notifying the client of the progress of accusation; a court-appointed counsel receiving a payment without approval; and agreeing on a settlement exceeding the scope of authorization. Once a request for a disciplinary action is received, the disciplinary enforcement committee (koki inkai) of the relevant regional bar association investigates the case. If the disciplinary enforcement committee (chokai inkai) decides to request the disciplinary committee of the regional bar association to review the case, the disciplinary action committee determines whether to issue a disciplinary action. If the ethics committee decides against a disciplinary action, the person who filed the request may file an objection with the Disciplinary Enforcement Committee and the Disciplinary Action Committee of the JFBA. The requester may also file an objection with the JFBA if the regional bar association does not conclude the disciplinary proceedings within a reasonable time or he/she believes that the regional bar association issued an unreasonably minor disciplinary action. 


3. Policy Recommendations for Issues Surrounding Attorney Ethics


 Few of the major countries confer as strong supervisory power to their ministers of justice as Korea does to its Minister of Justice. In this regard, the Korean Bar Association (KBA) needs to be guaranteed of its independence, neutrality, and autonomy. However, it is worth considering that the state’s problematically strong supervisory power may have been justified by lack of trust toward lawyers and the KBA. Then, lawyers and the KBA would have to depart from wrongful practices of the past (such as ‘preferential treatment for retired public officials,’ ‘law brokers,’ and corruption of legal professionals). 


In the long term, Korea needs to take all and any supervisory power from the Minister of Justice as Japan did in the past, and transfer the power of the Legal Ethics and Professional Conduct Council to request a disciplinary procedure or an investigation back to regional bar associations. In addition, it seems appropriate to entrust the KBA with the various tasks for preventing preferential treatment for toward retired public officials, for example: submission of retainer agreement data by lawyers who have retired from public office (Attorneys Act, Article 89-4); submission of retainer agreement data by specific lawyers (same Act, Article 89-5); submission of details of activities of retired public officials in law firms (same Act, Article 89-6); prohibition of divulgence of confidential information (same Act, Article 89-7); and reporting to the national assembly (same Act, Article 89-9). 


In addition, if lawyers and the KBA need to be supervised at least on a minimum basis, Korea may consider entrusting the supervisory power to the court, which adjudicate cases in a neutral position between counsels and prosecutors (as they do in Germany, the United States, France, and Japan) rather than the Ministry of Justice, who also supervise prosecutors on the other side under the adversarial criminal litigation system. 


The independence, neutrality, and autonomy of lawyers and the KBA are connected with the independence and neutrality of court-appointed counsels. It would be the most ideal for the court-appointed counsel system to be managed by the KBA rather than the state. 


Specifically, the court and the Korea Legal Aid Corporation (KLAC) appoint court-appointed counsels from their court-appointed counsels list. Kora needs to be lower the arbitrariness of the appointment process by having them appointed from the KBA’s member list. 


Second, there are concerns that the appointment of court-appointed counsels is dependent upon a certain institution. To address these concerns, Korea needs to refrain from having the court-appointed counsel system ‘exclusively’ entrusted to the court, the KLAC, or a new non-profit special-purpose corporation and, instead, appointing court-appointed counsels using the previously mentioned process. 


Third, Korea needs to make active use of the KBA’s Pro Bono Support Center. 


Fourth, as the court-appointed counsel system is founded on the obligations of lawyers, it would be more consistent for the uation of court-appointed counsels to be conducted by the KBA. The KBA can also autonomously discipline lawyers who violate laws or the professional codes of conduct. Issues regarding the duty of confidentiality and possible criminal involvement of defense counsels include the search and seizure of secrets protected by confidentiality, the reporting requirement for transactions suspected of money laundering, and the reporting requirement under the Act on the Prevention of Conflicts of Interests Related to Duties of Public Servants (Conflict of Interest Prevention Act).


As for the duty of confidentiality, the duty needs to be established as a right of a defense counsel AND a client not to be forced to disclose privileged information between the counsel and the client, beyond the duty of confidentiality that the counsel has toward the client. In this sense, professional secrets between the counsel and the client should be protected from search and seizure or communication restrictions under the Protection of Communications Secrets Act. To that end, as they do in France, the head of the KBA or his/her representative should be allowed to attend and refuse such search and seizure, and judges should be tasked with determining whether certain information constitutes professional secret. 


As for the reporting of transactions suspected of money laundering, lawyers should be required to manage client risks when providing legal advices on the management of third party properties, and such requirement needs to be stipulated in law. However, requiring lawyers to report suspicious transactions and punishing them for violating the requirement (in particular, failure to report a crime under Articles 4, 4-2, 5-2, 7, 16, and 17 of the Act on Reporting and Using Specified Financial Transaction Information (Specified Financial Information Act)) is likely to seriously undermine the trust between a lawyer and a client supported by the duty of confidentiality. As such, Korea needs to benchmark the legislations of other countries by entrusting the KBA with building and operating a compliance governance system to ensure autonomous regulation based on the independence, neutrality, and autonomy of lawyers and the KBA. 


The Conflict of Interest Prevention Act provides for the reporting and evasion of persons with personal interests (Article 5) and the reporting and disclosure of private sector activities of high-ranking public servants (Article 8). Exceptions to these requirements need to be granted for secrets protected by the duty of confidentiality, because defense counsels occupy a special status and the core of the counsel-client trust lies in the counsel’s duty of confidentiality.



With regard to the issue of whether a defense counsel should be punished for receiving his/her fees from properties originating from a crime, the defense counsel may be punished for receiving profits originating from crimes under the current law. However, the current provisions are not readily applicable to defense counsels because being a lawyer has unique characteristics as a profession; trust between the client and the counsel is ensured by the duty of confidentiality; suspects and defendants are presumed to be innocent at the time of appointing a defense counsel; a fair trial can be ensured only when the unique characteristics, trust, and presumption of innocence are ensured. In addition, if the current provisions were applied, a lawyer would be punished merely for agreeing to represent, and receiving a fee from, a suspect or a defendant suspected of concealing, disguising, or receiving profits originating from crimes. Granted, the current legal framework would not tolerate a defense council who actively participated in a client’s money laundering operation with clear awareness of the criminal origin of the attorney’s fee. Therefore, a defense counsel should be punished for receiving criminal profits when they are clearly and positively aware of the criminal origin of his/her attorney’s fee, beyond mere awareness that the fee may originate from a crime. Like the United Kingdom, if a lawyer received a reasonable attorney’s fee, the lawyer needs to be protected from the risk of an internal investigations to ascertain criminal charges or compulsory investigation (especially search and seizure) to determine whether criminal profits were received. However, such protection would require legislative actions. 



With regard to the ‘public attorney’ system for vulnerable groups, the legal aid framework is fragmented across different individual laws and actors in criminal proceedings, making it difficult for beneficiaries to understand the overall picture. However, while this issue needs to be addressed by an institutional reform, a unilateral unification of the legal aid services may thwart their diversity and reduce the choices available for the vulnerable groups,. In addition, as for the court-appointed attorney system, many commentators have pointed out the need to expand the beneficiaries of the system to include arrested suspects, because an arrested suspect needs urgent legal assistance as much as a detained suspect, as both are subject to freedom-restricting compulsory measures. Ideally, the scope of beneficiaries may be further expanded to include suspects summoned by investigative agencies. TO ensure meaningful protection of the right to counsel through the court-appointed attorney system, a suspect should be notified of his/her right to counsel as well as the right to have an attorney appointed by the court when the suspect is summoned or arrested. Another change worth considering is to let a suspect or defendant choose an attorney before the court appoints one, as is the case in Germany. In addition, a suspect/defendant should be allowed to appeal a dismissal against a request for a court-appointed attorney on the spot. 



The list of crimes for which criminal victims can request a court-appointed attorney also needs to be expanded to include crimes other than sexual violence, abuse of children and people with disabilities, and human trafficking, such as homicides, involuntary manslaughter, infliction of serious injuries resulting in long-term disabilities, and property crimes causing significant damages. 


Article 33 (2) of the Criminal Procedure Act simply stipulates that a defendant may request a court-appointed counsel when “the defendant cannot appoint a counsel on account of poverty or other reasons.” The provision needs to be revised to specify the reasons for requesting a court-appointed counsel and require the court to appoint one if a defendant falls under any of the reasons. 



A criminal victim with communication issues, such as those with intellectual disabilities, may seek the assistance of a statement assistant. However, the right to counsel of a suspect or a defendant would be undermined all the same if he/she has communication issues, because communication is one of the prerequisites for receiving assistance from a counsel. Therefore, statement assistants should be also made available for suspects and defendants. 



In addition, in some cases, defendants with intellectual disabilities were tried without a counsel even though the nature of the case required a counsel’s assistant. Such a trial violates the Criminal Procedure Act and constitutes a material infringement on the defendant’s right to counsel. The courts should rectify this practice. 



There exists controversy whether ‘preferential treatment for retired public officials’ actually exists, with skeptics claiming that it is a mere socio-psychological suspicion stemming from people’s distrust toward the judiciary. Regardless of which side is true, preferential treatment would not be an issue in the first place if investigative agencies or judges investigate or adjudicate cases in a fair manner. One of the issues related to preferential treatment for retired public officials is whether the ultimate responsibility for the preferential treatment lies with judges who fail to adjudicate cases “in accordance with the Constitution and the laws, independently, following their conscience (Constitution, Article 103). We can also ask why the three-instance court system failed to rectify the unfair decisions caused by such preferential treatment. 


In most court cases, application of law is simply a matter of finding and applying provisions that fit the facts ascertained in the case. However, in criminal cases, a judge determines whether a crime has been proven beyond reasonable doubt based on facts supported by evidence admitted by the court. As this process of fact-finding and opinion-forming takes place in the judge’s mind (even though this process is not purely discretionary), the process is not subject to scrutiny unless the judge clearly states the detailed reasons for her judgment. 


There are several possible measures to address the issues discussed above. First, it is doubtful that stricter punishments for violations of the currently implemented measures will be effective in terms of the independence, neutrality, and autonomy of lawyers and the KBA. Instead, the KBA needs to be granted more supervisory power over lawyers who retired from public positions, and the relevant disciplinary measures need to be implemented in a strict manner. Second, more concrete and clear criteria need to be defined for disciplinary actions other than a mere violation of the ‘duty to maintain dignity.’ The detailed disciplinary standards in the ABA Rules (Chapter 3, Section 2, 4. D) provide good reference points in this regard. Third, to ensure the strict and precise implementation of disciplinary measures, protect the rights of disciplined lawyers, and improve the reliability of the disciplinary procedures themselves, the relevant provisions of the Criminal Procedure Act should apply to disciplinary procedures. Fourth, suspects and defendants may exclude, avoid, or challenge lawyers. The allowed reasons for exclusion/avoidance/challenge need to be clearly specified in the law, and a violation of these criteria needs to be specified as a reason for a disciplinary action. Fifth, if Article 29-2 of the Attorneys Act is designed to prevent the so-called “hidden counsel” by retired public officials, an administrative fine should be imposed for a failure to submit a power of attorney for purposes other than tax evasion. Sixth, it is unclear whether a judge who retired from a non-adjudicative position still constitutes a retired public official for the purpose of preferential treatment for retired public officials. Therefore, the employment of lawyers who retired from public positions should be restricted based on a clearly defined scope of ‘retired public officials’ and the scope of restricted services. Seventh, judges should be required to provide clearer deions of the reasons for their decisions to allow for more scrutiny over the fairness of the decisions and determine whether they were affected by preferential treatment for retired public officials. 


The provisions on reporting, avoidance, and challenge of persons with commercial or personal interests under the Conflict of Interests Act universally and equally apply to public officials in general. As such, they conflict with the exclusion, avoidance, and challenge provisions in the Criminal Procedure Act, which are predicated on the special nature of criminal court proceedings and the unique legal status of litigants. The reasons for exclusion, avoidance, and challenge under the Criminal Procedure Act are different from those specified in the Conflict of Interests Act, and they take place during court proceedings. Therefore, there may exist uncertainties regarding application of the relevant provisions unless one of the two Acts is revised. As for disciplinary actions, Korea needs to ensure the independence of the disciplinary procedures at the KBA. The Minister of Judgment needs to be less involved in disciplinary procedures, and the KBA should lead the procedures to ensure its independence, neutrality, and autonomy. 


Second, it seems excessive to impose an administrative fine on a lawyer who fails to comply with an on-site investigation, etc. by the Legal Ethics and Professional Conduct Council. The provision on the administrative fine needs to be struck down. In fact, no one is imposed an administrative fine for failing to cooperate with an investigation for a disciplinary request or application by the KBA or a person specified in Article 97-2. In addition, an administrative fine is imposed by the head of a regional prosecutors’ office, not the Legal Ethics and Professional Conduct Council. 


Third, more concrete and clear criteria need to be defined for disciplinary actions other than a mere violation of the ‘duty to maintain dignity.’ 


Third, to ensure the strict and precise implementation of disciplinary measures, protect the rights of disciplined lawyers, and improve the reliability of the disciplinary procedures themselves, the relevant provisions of the 「Criminal Procedure Act」을 should apply to disciplinary procedures. 


4. Criminal Responsibilities of Lawyers


 In criminal procedures, a defense counsel does not simply represent a suspect or a defendant, but also support their ability to defend themselves. In this sense, the history of the criminal procedure law is often described as the history of expanding people’s right to defend. As such, the role of defense counsels has been expanding and growing. Then, a defense counsel should fulfill the role by protecting the interests of suspects and defendants. However, a defense counsel in a criminal procedure is different from a counsel in a civil procedure because the criminal procedure is designed to discover actual truths and achieve due process, which means a counsel may not protect the interests of a defendant or a suspect by sacrificing the actual truths and due process. In other words, a lawyer should should carry out his/her duties within the legal status and scope. A lawyer is not allowed to protect a client’s interests at all costs. A lawyer is obligated to carry out the tasks authorized by the client with due diligence. However, it does not mean that a lawyer may sympathize or cooperate with the client’s illegal acts. A lawyer is bound by truth and justice. A lawyer, and litigants for that matter, should not take an action that may disrupt the truth-finding process. 


A lawyer’s criminal responsibilities or responsibilities in criminal procedures can be categorized as follows. First, a lawyer may be punished for violating certain obligations while performing his/her duties, which constitutes a crime in itself. A lawyer’s representation of his/her client seldom constitutes a crime in itself, which may include violation of the duty of confidentiality, unlawful disclosure of professional secrets, violation of the duty of candor, and harboring of a criminal. A serious violation of the codes of conduct should be considered for criminal responsibilities other than disciplinary actions. However, many of lawyers’ duties expose them to criminal sanctions. If lawyers are held criminally liable for performing their duties, it may restrict or thwart their activities as a lawyer. Therefore, the relevant provisions need to be more strictly interpreted and applied based on more clearly defined scopes of representation activities and code violations. A Japanese court attempted to punish a lawyer who gave a legal advice as a co-principal under the Penal Code. This example shows why we need to clearly distinguish between a lawyer’s active representation activities and code violations subject to criminal sanctions.


A lawyer may be also held criminally responsible under the mandatory provisions and the punitive provisions in the Attorneys Act. As such, we reviewed violations of the Attorneys Act that constitute punishable crimes in and of themselves. Due to the structure of the Attorneys Act, a non-lawyer who employed a lawyer can be punished under the Act, whereas a lawyer cannot be punished for providing his/her services under the employment of a non-lawyer. This is not fair compared to the regulations on other non-qualified professionals. In addition, in cases where a lawyer allows another person to use his/her name, both the lawyer and the one who used his/her name are punished. As allowing others to use a lawyer’s name is not easily distinguishable from a non-lawyer’s employment of a lawyer in the factual standpoint, the Attorneys Act needs to be revised to punish both a non-lawyer who employed a lawyer and the employed lawyer.


Lastly, there exists an issue regarding the legal effect of a lawyer’s violation of his/her duties during criminal proceedings. In cases where a client has his righto to effective counsel undermined by inadequate representation by his/her defense counsel, the counsel is deemed to have violated the duty of diligence, which is addressed by a disciplinary action or civil liabilities. However, considering the significance of the importance of the right to counsel in criminal proceedings, disciplinary actions or civil procedures may not offer sufficient protection for the constitution right to counsel, and we need to consider the effect of inadequate representation under the Criminal Procedure Act. Inadequate representation can be grouped under two categories: malpractice, which means a violation of the duty of diligence in which a client’s right to effective counsel is undermined by the counsel’s ignorance, negligence, insincerity or lack of legal knowledge expected of a legal professional; and a violation of the duty to avoid conflicts of interest that violates the right to effective counsel. In case of a malpractice, some commentators have proposed that the court should give a client an opportunity to receive a new trial by overturning the original decision or dismissing the indictment, depending on the type of malpractice and if the fairness of the procedure was undermined to the extent that the equity between the parties could not be achieved. In fact, the United States courts order retrials or revise sentences in cases where a defendant’s right to effective counsel is undermined. However, adoption of the case law in Korea is restricted by the difference in the criminal procedure laws and litigation structures between the two countries. As such, in cases where a defendant has his/her right to counsel undermined by a lawyer who violates the duty of duty of diligence or the duty to avoid conflicts of interests, the only remedy available for the defendant is the appeal system.

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