이익충돌과 쌍방대리금지 -대법원 2024. 1. 4. 선고 2023다225580 판결의 평석을 겸하여-

The main issues in Korean Supreme Court case 2023Da225580 were (i) whether attorneys which are regarded as one attorney under Article 31.2 of the Korean Attorney-at-Law Act(“Attorney Act”) representing both parties in a non litigation transactional matter would violate Article 31 of the Attorney Act, and (ii) whether the sales contract represented by those attorneys was valid. Regarding the first issue, the Supreme Court declared that consulting or advising adverse clients on a non litigation matter falls within the scope of Article 31 which prohibits representation. However, the Court further ruled that (although there is no explicit mention in the Article 31 of the Attorney Act) such conflict of interests can be cured by the consent of the client. With respect to the second issue, the Court applied Article 124 of the Korean Civil Code in this situation where there are two attorneys(agents) but are regarded as one for the purposes of Article 31.1 because of imputation. In judging the above two issues, it appears that the Court considered the most fundamental purpose of prohibiting attorneys from representing both sides is to protect the interest of the clients, and to implement this goal, the Court allowed the interplay between the two provisions despite their literal text. Yet, what appears to be lacking from the Supreme Court ruling is the establishment of stricter the requirement for obtaining the client’s consent. Considering the relationship between the attorney and client, the professional nature of the work that attorney conducts, the Court should have set out the requirements of consent, for instance that the consent should be given after receiving sufficient explanation from the attorney about the conflict of interest situation and the risk it entails as well as other alternatives.