Should In-House Counsel Also Be Granted ACP?

Legal teams at major corporations such as HYBE and Kakao Mobility have recently been subject to search and seizure operations related to company incidents. As such cases appear to be increasing compared to the past, there is a growing argument that in introducing Attorney-Client Privilege (ACP), in-house counsel should also be included as protected parties. In-house counsel now account for nearly a quarter of all attorneys.

Key Issues Related to the Legislation of ACP. The Legal Newspaper.

South Korea is effectively the only member country of the Organisation for Economic Co-operation and Development (OECD) that does not legally guarantee ACP. The current Attorney-at-Law Act only stipulates the confidentiality obligation of lawyers, without specifying the right to protect client secrets from investigative actions such as search and seizure. During his candidacy, President Lee Jaemyung pledged to introduce ACP as part of his campaign promises. Seo Youngkyo, a lawmaker from the Democratic Party of Korea, has proposed a bill that would prevent emails and documents exchanged between a client and their lawyer from being used as evidence in trials or administrative investigations. For ACP to be guaranteed for all lawyers under this bill, there must be wording or interpretation that includes company executives and employees as clients in the case of in-house counsel.

Proponents of including in-house counsel as protected parties argue that since legal opinions obtained from external law firms are ultimately stored by the company’s legal team, excluding in-house counsel could render ACP meaningless. On the other hand, critics point out that in-house counsel have a dual status as 'employees' of the company, making it difficult to assume the same level of independence as external attorneys, and therefore caution should be exercised in granting ACP to in-house lawyers.

The scope of ACP recognition for in-house counsel varies by country. In the United States and the United Kingdom, a balance is maintained through other mechanisms that prevent abuses such as obstruction of justice, and ACP is broadly recognized for in-house counsel when providing legal advice. In Germany, ACP is recognized in civil litigation but is limited in criminal proceedings. France is currently pursuing legislation to recognize ACP within a limited scope.

Park Seongdong, The Legal Times Reporter

※This article is based on content supplied by Law Times.

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