[The Editors' Verdict] The Korean Bar Association Defies the Constitutional Court's Lotok Ruling

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] “We welcome the Constitutional Court’s ruling upholding the ban on joining Lotok.”

This is the title of the statement released by the Korean Bar Association (KBA) a day after the Constitutional Court ruled that three provisions of the ‘lawyer advertising regulations’ created by the KBA to prevent lawyers from joining Lotok were unconstitutional for infringing on freedom of expression and freedom of occupation.

The KBA distributed this press release to various media outlets and also sent it via email to its member lawyers. Reporters and lawyers who read the statement uniformly reacted with comments like “What is this?” and “The KBA is engaging in self-delusion.”

The day before, Lotok’s operating company, Law&Company, which filed the constitutional complaint, had expressed its “welcome” to the Constitutional Court’s ruling, and all media outlets reported “Constitutional Court rules lawyer advertising regulations unconstitutional,” which led to this situation.

Moreover, the KBA stated in its commentary that “any legal expert can understand the intent and content of the Constitutional Court’s decision, but it has been completely misunderstood,” and that “completely opposite and incorrect media reports are being indiscriminately spread.”

Subsequently, the KBA held a ‘public briefing’ to explain why it claims the unconstitutional ruling is actually a constitutional one. The Constitutional Court reviewed 12 provisions in total, of which only three were ruled unconstitutional while the remaining nine were upheld, so the KBA argued that this essentially means a constitutional ruling. They also claimed that the key provision used by the KBA to discipline lawyers who join Lotok was not among those ruled unconstitutional by the Court.

But is the KBA’s claim true? Not at all.

First, in constitutional review cases concerning laws or regulations, it is very rare for all provisions under review to be ruled unconstitutional. Even if only one provision is ruled unconstitutional, that itself is a shocking matter, and the number of provisions upheld is not meaningful. In fact, most of the provisions upheld by the Constitutional Court this time are already prohibited by the Attorney-at-Law Act or are obviously reasonable regulations.

Second, the core of this Constitutional Court ruling is that three provisions of the advertising regulations created by the KBA targeting Lotok infringe on the fundamental rights of Lotok’s operating company and lawyers who join Lotok, thus being unconstitutional. Constitutional complaints are a system to review whether the exercise of public authority by state agencies infringes constitutional fundamental rights. The Court judged that the KBA, as a public corporation delegated authority under the Attorney-at-Law Act to regulate lawyer advertising, acts as a subject of public authority. The fact that the Court found three provisions in the regulations created by a professional organization representing lawyers to be unconstitutional is a matter the KBA should be ashamed of, not celebrate.

The details of the provisions ruled unconstitutional make this even clearer. The Court ruled unconstitutional Article 5, Paragraph 2, Subparagraph 1, which prohibits requesting or cooperating with companies like Lotok that advertise lawyers for a fee, and two other provisions that use the ‘association’s authoritative interpretation’ as grounds for advertising sanctions.

The former is a provision the KBA forcibly created targeting Lotok despite Article 23 of the Attorney-at-Law Act broadly allowing lawyer advertising regardless of whether it is free or paid. This was the provision the KBA applied when requesting disciplinary action against lawyers who joined Lotok in April. The latter can be understood as meaning “if the association interprets it as not allowed, then it is not allowed,” but the Court pointed out that “even looking at the rules of other professional groups such as patent attorneys or certified public accountants, there are no provisions using the term ‘authoritative interpretation’ or disciplining violations thereof.”

After the Court ruled Article 5, Paragraph 2, Subparagraph 1 unconstitutional, the KBA claimed that Article 5, Paragraph 2, Subparagraph 2 is the key basis for disciplining lawyers who joined Lotok and self-praised that “the Constitutional Court recognized the constitutional legitimacy of the KBA’s disciplinary actions against lawyers participating in Lotok.”

Article 5, Paragraph 2, Subparagraph 2 prohibits lawyers from requesting or cooperating with advertising entities that are not lawyers themselves but display their company name or trade name to introduce or mediate legal consultations or cases, or advertise lawyers. Contrary to the KBA’s claim, the Court never stated that Lotok’s advertising method falls under this provision.

Rather, the Court clearly stated that “simply providing a platform where lawyers and consumers can connect cannot be regarded as directly connecting lawyers and consumers,” thus confirming that lawyer advertising platforms like Lotok are permitted under current law. The Court also confirmed that “the petitioner company can continue lawyer advertising business in ways that do not violate the Attorney-at-Law Act, such as the prohibition on partnerships,” affirming that Lotok’s business does not violate the Attorney-at-Law Act.

Despite the prosecution’s three no-indictment decisions, the Ministry of Justice’s repeated statements that “Lotok is legal,” and the Constitutional Court’s ruling of unconstitutionality, the KBA continues to insist that “Lotok’s business method violates the Attorney-at-Law Act.” Since the prosecution found no crime and did not indict, the courts have not had the opportunity to rule on whether Lotok violates the Attorney-at-Law Act. The KBA’s attitude of ignoring repeated judgments by prosecution experts in criminal law and interpretations by the Ministry of Justice’s legal oversight department deserves criticism.

The KBA’s concern that as more lawyers join Lotok, Lotok will prioritize profits and increase advertising fees, leading to lawyers with less skill but higher advertising spending being chosen by consumers, thereby disrupting the order of the lawyer market and causing capital dependence of lawyers, is understandable. However, even if the purpose is justifiable, it is unacceptable to insist that legality is illegality or to create internal regulations violating the Constitution to discipline lawyers who join Lotok.

Is it already too late to apply the brakes? After the Constitutional Court’s ruling of unconstitutionality, the KBA again resolved to request disciplinary action against 28 lawyers who joined Lotok. If disciplinary measures are taken, it is inevitable that the disciplined lawyers will file lawsuits to cancel the disciplinary actions.

If the Supreme Court later issues a final ruling that the KBA’s disciplinary actions against lawyers who joined Lotok are illegal, what responsibility will the KBA bear toward the lawyers who suffered unfair discipline and Lotok, which suffered huge business losses? The current administration must answer this.

[Rebuttal Report] Regarding the Constitutional Court Decision on the Korean Bar Association’s ‘Lawyer Advertising Regulations’

Our newspaper reported in the June 9 issue’s article titled <[Pros and Cons] KBA Opposes Constitutional Court Decision on Lotok> that despite the Constitutional Court ruling certain key provisions related to Lotok unconstitutional, the Korean Bar Association continues to insist that “Lotok’s business method violates the Attorney-at-Law Act.”

In response, the Korean Bar Association informed us that “since the Constitutional Court has not explicitly ruled that Lotok’s business method is permitted, the KBA will continue disciplining lawyers who join Lotok, and that the Constitutional Court upheld some provisions among those the Ministry of Justice deemed unconstitutional.”

This report is pursuant to the mediation of the Press Arbitration Commission.

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