A Comparative Study of the Attorney Ethics Rules of Korea and the U.S. and the Application of Ethics Rules in Cross-Border Legal Representations

An ethical dilemma for a U.S. attorney who represents a U.S. company can arise when a trial court in Korea orders him to provide certain materials which he believes to be a violation of the ethical duty of the particular state where he is licensed to practice. Under the ethical duty of confidentiality rule, a U.S. attorney is prohibited from revealing information relating to the representation of a client. An attorney in the U.S. under the attorney-client privilege is also prohibited from disclosing confidential communication that takes place when a client seeks a legal advice from him. Since the duty of confidentiality covers information obtained by the attorney from any source besides from his client, its scope is broader than the attorney-client privilege in terms of providing a protection to the client. The Korean rules provide for the duty of confidentiality as well. However, a difference of the relevant rules between the U.S and Korea can be found in that the U.S. provision extends protection to any information relating to the client representation whereas the Korean provision seems to limit its protection to ‘secrets’ learned through the representation. Also, the Korean rules provide for a ‘public reason’ exception to the duty of confidentiality where the attorney can disclose the client’s secrets. This public reason exception is very wide in its scope and thus can be interpreted very liberally at the disadvantage of the client. The Korean laws do not specifically provide for the attorney-client privilege and the work product doctrine. The duty of confidentiality alone may not be sufficient for the full protection of client’s confidential information in that the disclosure of information in violation of such duty can still be used as evidence in trial and can incur actual damages to the client. Due to the significant levels of differences in ethical obligations between the two countries, an issue can arise whether a U.S.-licensed attorney, who is involved in cross-border legal disputes, should be subject to the ethics rules of the U.S. or Korea. This paper discusses the advantages and disadvantages of home-state approach, host-state approach, conflicts-of-law approach, international rules approach, and contract approach. This paper proposes that the parties and attorneys from both countries when entering into a contractual relationship specify the conflicts-of-law rules as delineated in ABA Model Rule 8.5(b) which can be used a rule for regulating and governing all the ethics matters arising from legal representations. This will provide a clear guideline and a sense of assurance to all the parties and lawyers that an ethical issue can be prevented or resolved according to their contractual intents and determinations.