미국의 외국변호사의 법적 지위에 관한 고찰

According to the Korea-U.S. Free Trade Agreement (hereunder, KORUS FTA), the U.S. and Korea are on the way to opening their domestic legal market. Upon comparing the Korean Foreign Legal Consultant Act (hereunder, KFLCA) and 「Model Rule for the Licensing and Practice of Legal Consultant」 (hereunder, Model Rule) prepared by the American Bar Association (hereunder, ABA), even if there are a few differences, including on the issues of careers for a Foreign Legal Consultant (hereunder, FLC) between the KFLCA and the Model Rule, the above said two legislations have considerably similar in general. However, it should be said that as a defender’s stance Korea tends to keep its domestic legal service market against from the U.S.’s aggressive requests for the opening of Korean domestic legal service market by limiting FLC’s scope of business, the U.S. allows the FLC more liberty for their business. The KFLCA, especially, puts strict restriction on a FLC’s abilities for provision of legal services in Korea as a criterion of ‘unjustice intervention’. On the contrary, the U.S. exceptionally permits a FLC render its legal opinions on the law of the U.S. and/or some States, except on the basis of advice from a person duly qualified and entitled to render professional legal advice in the U.S. on such law. Meanwhile, it must be stressed that demands for a FLC’s legal service will rise on the matter of international trade, international taxation etc. which have characteristics of internationalities, and that on those legal issues foreigners may be parties to the disputes. Moreover, with separation of the law of Korea and non-Korea, the KFLCA does not allow FLCs to render legal advice on the law Korea. When it comes to the above mentioned consideration, however, it is doubtable that provisions of the KFLCA can be justifiable. Additionally, the KFLCA need at least 3-year’s legal career as the minimum requirement for licensing a FLC. By the way, the ABA’s Model Rule request at least five years for licensing a FLC. Since the main applicants as a FLS would be young attorneys who just have legal careers of under five years and have interests in expanding their legal career as a FLC, the discrepancy between two legislation should be adjusted either with revision of the KFLCA to the minimum five-year’s legal career or with revision of the Model Rule to the minimum three-year’s legal career.