New Korean Supreme Court case finds that broad attorney-client privilege does not exist in Korea

Under Korean law there are no express provisions that govern or provide for 'attorney-client privilege' as typically found in common law jurisdictions such as the United States and England & Wales. Nonetheless, the Korean Criminal Procedure Act ("KCPA") and the Attorney-at-Law Act ("ALA") protect the confidentiality of communications between an attorney and his or her client by permitting or requiring the attorneys to refuse testimony or production of evidence.

On the basis of these statutes, in June 2009, the Seoul High Court found in a criminal case that legal opinions and memoranda provided by external counsel that had been seized by the Korean police during a search were protected by the attorney-client privilege. The court's analysis was that the right to representation provided for in the Korean Constitution could be undermined as the confidentiality provisions in the KCPA and the ALA were not sufficient to give rise to an expansive right of privilege over communications between attorney and client. In reaching this decision the court also noted that the attorney-client privilege is recognized in the courts of the United States and England & Wales. (For the details of this Seoul High Court decision, please refer to our Internal Investigation Newsletter of July 2009, which can be accessed through this link.)

This was a landmark case within Korea as it was understood that the privilege found by the court, stated to be based on the Constitution, would also be applicable to civil litigation. The prosecution filed an appeal, and after a wait of almost three years, the Supreme Court now made its decision.

The Supreme Court overturned the portion of the Seoul High Court's decision relating to attorney-client privilege on the basis that there are no explicit statutory grounds to sustain a general concept of attorney-client privilege. Whilst the Supreme Court accepted that there are certain provisions under the Constitution and the KCPA which relate to the confidentiality of certain documents, it found that these cannot be taken to be analogous to the broad nature of attorney-client privilege typically found in common law jurisdictions. Although the Supreme Court's decision solely relates to criminal cases, since the decision confirmed that the attorney-client privilege is not derived under the Constitution, it should be inferred that their analysis on this point would also apply to civil cases.

Notwithstanding the above analysis, the Supreme Court still found that the legal opinions and memoranda were not disclosable as they qualified as hearsay evidence and the originators of such documents were protected from giving evidence by the KCPA and ALA. As a result, it noted that the protections under these acts can only be relied upon after the criminal proceeding is initiated. Thus, according to this Supreme Court decision, the scope of evidence that can be excluded as communications with the attorney, at least in criminal proceedings, will be much narrower than that recognized under common law jurisdictions.

Whilst the Supreme Court's decision is not unexpected as it accords with a narrow reading of the Korean Constitution, it is, nonetheless, the first explicit confirmation that the common law concept of attorney-client privilege does not exist in Korean law. This obviously has important implications for parties who conduct civil litigation and/ or commercial arbitration in Korea and it is particularly important for foreign clients who may expect some form of equivalent protection to attorney-client privilege to exist in Korea. Some practical advice on how to handle this when involved in civil litigation and/ or commercial arbitration with some Korean nexus is provided below.

First, considering the implications of this decision for domestic civil litigation, clients and their attorneys must understand that nothing is protected from disclosure by virtue of being subject to attorney-client privilege although, tangentially, the Korean Civil Procedure Act and ALA do afford a certain basic protection on the basis of confidentiality. (The details of this statutory protection are set out at pages 1 and 2 of our prior Newsletter here.) Ultimately, this means that clients and their advisers will need to be careful in the production of documents prior to and during litigation and in their communication with attorneys. Nonetheless, the Supreme Court's decision does not mean that all documents which would otherwise be privileged are practically required to be disclosed to the Korean courts and opposing parties. This is because civil proceedings in Korea do not allow for broad, common law, requests for production of documents. In order to ensure that clients are protected in this regard, it is necessary to engage experienced Korean qualified attorneys at an early stage of any litigation proceedings.

Second, in respect of international arbitration, the Supreme Court's decision gives rise to a need to address the issue of privilege at an early stage of the proceedings wherever a Korean party is involved or the governing substantive or procedural law is Korean. This is because in international arbitration there are no set rules regarding attorney-client privilege and how documents are to be treated in proceedings. Thus parties can explicitly provide and agree with the tribunal which laws should apply and how document requests and disclose should be handled. This method of handling and agreeing beforehand the precise nature of privilege will ensure that this issue will be handled fair and equitably to the parties, and avoid any difficulties arising from uncertainties during the proceedings. Once again, where the governing substantive or procedural law is Korean, it will be vital to involve experienced Korean law qualified attorneys at an early stage.