법무법인에 발생하는 이익충돌과 충실의무 : ‘준수탁자’로서의 법무법인

Law firms may face different kinds of conflict of interest in rendering their legal services to their clients. But, it is still unclear under the Korean law whether the firms are attached with the Anglo-American type of duty of loyalty. The first part of this article deals with to what extent and how the concept of duty of loyalty has been received in Korean law. Although there is no statutory provision explicitly recognizing the duty of loyalty in the Korean Trust Act, the Korean Supreme Court drew trustees' duty of loyalty based upon the statutory provision prohibiting trustees' self-transaction. It is argued here that the same logic can be applied to law firms: law firms' duty of loyalty can be drawn from the statutory provision prohibiting lawyers' dual agency in the Korean Lawyers Act. It is also investigated that the necessity of imposing duty of loyalty is not different whether a property interest is transferred to trustees on trust or whether the discretion to deal with the interest is vested upon mandatees on mandate relationships. In this sense, certain mandatees can be termed as quasi-trustees, and to these kinds of quasi-trustees the statutory provisions regarding trustees in the Korean Trust Act can be applied. As the law firms are exercising considerable influence or discretion in dealing with their clients' disputed property or in making an legal advice for commercial deals, it is argued here that the fiduciary provisions in the Trust Act can be applied to law firms as if they are trustees in rendering their legal services to their clients.