징계유형을 중심으로 한 미국의 변호사 징계제도에 관한 연구 - 우리나라 변호사 징계제도에 주는 시사점과 개선방안 -

The professional duty of the lawyer lies in the area of the private law which is based on the principle of private autonomy, but the Attorney-at-law Act of Korea explicitly provides the public nature of the lawyer’s professional duty by defining the lawyer as “a legal professional of public nature”. The public nature of a lawyer is derived from the mission of a lawyer to defend fundamental human rights and realize social justice, so the Attorney-at-law Act of Korea regulates the profession on the ground of the public nature of the lawyer’s professional duty. The legal affairs as a professional duty of the lawyer, have a purpose of protecting the freedom and the right of the people. If one fails to have proper legal assistance by the lawyer due to his wrongdoings, it would place his or her right to property at risk. For this reason, the performance of the lawyer’s professional duty should be regulated on the ground of the public interest to maintain the rule of law. The strongest regulatory method which enales the quality control by regulating the acts of the lawyer would be a disciplinary system. Therefore the strict and effective implementation of attorney disciplinary system is crucial to maitain the rule of law. This paper would analyze the diciplinary system and the measures of U.S., and seek for solution to improve the attorney disciplinary system in Korea. For these reasons, this paper will search for the way to improve the current disciplinary system in Korea based on the comparative analysis of the disciplinary system and measures in U.S. as follows: (1) The Attorney-at-law Act of Korea provides both the revocation of registration and the disbarment as means to disaccredit a lawyer, whereas the only way of disacrreditation is the disbarment in U.S. However due to discrepancy in the respective legal culture, it would be better to keep both the revocation of registration and disbarment and solve the conflict between the two measures with complementary legislation. (2) The probation in U.S. needs to be considered as a new sanction to supplement the disadvantages of the suspension which deprive the lawyer of the social and economic interests for a certain period of time. (3) The admonition which is the lesser sanction than the reprimand in U.S. needs to be introduced in the Attorney-at-law Act, especially when the lawyer has never been in the disciplinary proceeding, has not incurred damages to the client, and has committed the misbehavior by negligence. (4) A process to review the lawyer’s fitness which is as strict as the one in U.S. should be in place when the lawyer, who has been disbarred or suspended, applies to resume his practice.