Tax Issue Update
Litigation Issue Update
Intellectual Property Issue Update
KT's Joint Venture with Softbank Telecom
Samsung Electronics' Merger with Samsung LED
GS Home shopping's Acquisition of ViVi Media Trading Corp.
Mirae Asset MAPS's Acquisition of Office Building in Sao Paulo
Curtain Wall Subcontractor Bidding Project
Cort Musical Instruments' Wrongful Termination Suit and a Suit for Unpaid Wages
Awards
People

Legal Issue 2.

Supreme Court finds no basis for broad attorney-client privilege under Korean law

The Supreme Court recently ruled on whether a memorandum prepared by an attorney upon the request of his/her client may be used as evidence if it includes an admission of guilt from the client (Supreme Court Decision No. 2009DO6788, May 17, 2012).

When the Prosecutors' Office submitted a memorandum they had seized from the client as evidence to prove guilt, the Seoul High Court, the original court, had held that "the memorandum may not be used as evidence of guilt because the defendant had not agreed to the use of it as evidence" and "its authenticity had not been acknowledged by the attorney (the originator of the memoranda) at the court" pursuant to the provisions on admissibility of evidence under the Criminal Procedure Act (Seoul High Court Decision No. 2008NO2778, June 26, 2009).

The Seoul High Court had also held that the memorandum on which the attorney had provided legal advice may not be used as evidence to prove the client's guilt, on the ground that a client has the privilege to refuse to disclose confidential communications between him/her and the attorney which had been made for the purpose of providing legal counsel (even if its authenticity is acknowledged by the attorney, the originator of the memorandum).

While the Supreme Court agreed with the Seoul High Court that the memorandum is inadmissible under the relevant provisions of the Criminal Procedure Act, it did not accept the Seoul High Court's holding that the admissibility of evidence may be denied by invoking the attorney-client privilege.

The Supreme Court stated that they do not accept the argument that a client, who may not be deemed as accused or made a defendant against whom criminal procedures (such as an investigation or a hearing) have not commenced, has the right to legal counsel and thus has the privilege to refuse the disclosure of the contents of such legal advice made in the usual relationship with his/her attorney, nor do they accept the argument that documents seized without the consent of such client is inadmissible as evidence due to such privilege even though the seizure procedure had been lawful. The foregoing holding appears to suggest that the Supreme Court's view is that, since there is no express attorney-client privilege under the current law, the admissibility of opinions confidentially exchanged between the attorney and the client should also be determined pursuant to the general provisions of the Criminal Procedure Act.

In this case, the memorandum was held to be inadmissible because the attorney who had prepared it exercised the right prescribed under Article 149 of the Criminal Procedure Act based on which he may refuse to testify about facts (i) of which he has obtained knowledge by reason of the client's mandate received in his capacity as the client's attorney and (ii) which relate to the secrets of the client.

However, it appears from the holding of this case that the client may be disadvantaged by the disclosure of confidential communications made with his/her attorney while seeking legal advice if the attorney, as the originator of such confidential information, acknowledges its authenticity.