변호사의 겸직제한과 법조윤리 – 사내변호사를 중심으로 -

This article will mostly discuss the special status of some lawyers who work as full-time employees in government agencies, commercial companies or non-profit organizations (hereafter “In-house Counsel”). Attorney-at-Law Act(hereafter “AA”) and Korean Bar Association (hereafter “KBA”) have treated these lawyers samely as other general lawyers, although they are under quite different situations and thus shall be treated differently. According to Article 38 of the AA, each attorney-at-law shall be prohibited from concurrently holding office of a paid public official. At the time of legislation, this Article focused on such an event that a lawyer, who has operated his own law office, hopes to become a public official paid with regular salary. In this event, the lawyer will have two full-time jobs concurrently so that he could not do his best efforts as a public official and may exploit some confidential information for the operation of his private law office. We cannot find nowadays that kind of lawyer anymore, while some government lawyers who are employed as full-time officials without having any kind of his own private law offices. The Article 38 does not apply to this kind of lawyers, but KBA still has applied this Article to them, and thus all the government lawyers shall register the “closure of law office” as a formality even if they have never established or operated their own offices. Thus this Article shall be revised properly. Similar unreasonable practices are found with regard to the In-house Counsels. Although they are employed by a commercial company, AA and KBA require In-house Counsels to be devoted to public interests. Strictly speaking, the company who employed a lawyer as an In-house Counsel may have established or operated a law office, which is prohibited by Article 34. AA and KBA does not make this point clear. Duty of confidentiality is one of the most important legal duties as a lawyer. As an In-house Counsel, this is not merely a legal duty but the employer company will require him more strictly to keep this duty under the employment agreement. The exception of this duty is a critical issue to all the general lawyers, as the permission of a lawyer’s disclosure of the client's confidential information may be much devoted to the public interests. This exception is quite important especially to the In-house Counsel. Any kind of his disclosure of company’s confidential information may be of a critical help to public interest, but will definitely deteriorate the contractual relationship with the company. Therefore, AA and KBA shall provide some regulations for In-house Counsel’s role and responsibility regarding the exceptional disclosure of the client’s confidential information. Other issues on public interest activities, etc. are to be considered with regard to In-house Counsel’s status. Recent minor efforts towards In-house Counsel which have been made by KBA and the Ministry of Justice are notable, for which more active discussions will have to be made.