Is the Bar Association's Regulation Preventing Lawyers from Joining 'Lotok' Constitutional? ... Constitutional Court to Decide Today

Law & Company, the operator of Lotok, office in Seocho-dong, Seoul.
[Image source=Yonhap News]

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] On the 26th, the Constitutional Court will rule on the constitutionality of the clause in the "Regulations on Lawyer Advertising" amended last year by the Korean Bar Association (President Lee Jong-yeop) to restrict lawyers from joining online legal platforms such as 'Lotoc'.

The Constitutional Court will hold a hearing in the afternoon on the constitutional complaint filed by Law&Company (CEO Kim Bon-hwan), the operator of Lotoc, along with 60 lawyers, challenging Article 3 Paragraph 2 and Article 5 Paragraph 2 of the lawyer advertising regulations, and will make a decision on whether these provisions are unconstitutional.

The Bar Association amended the "Regulations on Lawyer Advertising" in May last year amid escalating conflicts with Lotoc.

Following consecutive non-prosecution decisions by the prosecution in 2015 and 2017 regarding Lotoc's alleged violations of the Attorney-at-Law Act, and with the Ministry of Justice repeatedly stating that "Lotoc is constitutional," the number of lawyers joining Lotoc gradually increased. To prevent this, the Bar Association established grounds to discipline lawyers who join Lotoc.

The amended Article 3 (Subject of Advertising) Paragraph 2 states that "Lawyers, etc. shall not display the name of another lawyer, non-lawyer, individual, organization, or business operator in advertisements for the purpose of promoting or conducting business on their behalf."

Additionally, the amended Article 5 (Restrictions on Advertising Methods) Paragraph 2 prohibits lawyers, etc. from requesting, participating in, or cooperating with any person (individual, corporation, or other organization) who engages in the following acts related to advertising, promotion, or introduction.

The prohibited advertising methods include: ▲ Receiving money or other economic benefits (such as referral fees, brokerage fees, commissions, membership fees, registration fees, advertising fees, regardless of name or whether regular or irregular) from lawyers or consumers to connect lawyers and consumers or to advertise, promote, or introduce lawyers for legal consultations or cases (Item 1); ▲ Advertising acts that violate other laws, the Lawyer's Ethical Code, or the rules of the Bar Association and local chapters (Item 6).

Specifically, Article 5 Paragraph 2 Item 1 targets legal service intermediary sites like Lotoc.

Lotoc does not charge membership fees but receives advertising fees, and the regulation prohibits requesting advertising or promotion from corporations that receive advertising fees and advertise lawyers.

The Bar Association also added a clause to the Lawyer's Ethical Code stating that lawyers shall not participate in or join as members in electronic media-based businesses such as applications that introduce lawyers or legal services. Violating this ethical code constitutes a violation of Article 5 Paragraph 2 Item 6 of the regulations.

In response, Lotoc filed a constitutional complaint with the Constitutional Court, arguing that these advertising regulations violate the principle of proportionality by infringing on member lawyers' freedom of occupational choice and freedom of expression, while also restricting legal consumers' right to access lawyer information. Lotoc claims that the amended advertising regulations by the Bar Association unfairly impose no sanctions on portals like Naver, Google, and Kakao that provide similar services, violating the principle of equality, as well as the principles of trust protection and clarity.

Previously, following the Seoul Bar Association and the Korean Bar Association, the Lawyers for Professional Defense Group also filed complaints against Lotoc for violations of the Attorney-at-Law Act and the Personal Information Protection Act. However, in December last year, the police decided not to prosecute, and after the complainants' objection, the prosecution reviewed the case and recently issued a third non-prosecution decision.

On the other hand, the Fair Trade Commission, which investigated the Bar Association following a report by Lotoc, sent review reports in November and December last year stating that the Bar Association violated the Fair Trade Act and the Act on Labeling and Advertising.

Despite three non-prosecution decisions by investigative agencies and the Ministry of Justice's legal judgment, the Bar Association has not relented in its intention to discipline lawyers who join Lotoc. Therefore, if the Constitutional Court accepts Lotoc's constitutional complaint and rules that the amended advertising regulation provisions violate the Constitution and infringe on fundamental rights, it would be a fatal blow to the Bar Association.

This content was produced with the assistance of AI translation services.