기능적 자치행정 관점에서 본 변호사 광고규제의 법적 문제 -변호사협회와 리걸테크의 분쟁사례를 중심으로 -

The advent of LegalTech signifies a transformation in the legal field, with digital technologies being widely adopted. Various services have emerged, such as searching and analyzing statutes, precedents, and academic articles, connecting lawyers and consumers, and managing litigation materials. The proliferation of generative AI has also enabled ordinary consumers to easily access legal information. As a result, tasks traditionally performed by lawyers are increasingly being automated or replaced, and LegalTech is exerting greater influence even in areas such as litigation strategy and prediction. These changes have led to conflicts, contradictions, and regulatory gaps between existing norms governing lawyers and the use of LegalTech. LegalTech directly affects the fundamental rights of a wide range of stakeholders, including not only lawyers but also consumers, technology developers, and business operators. Whether lawyer advertising is permitted is closely related to lawyers’ freedom of expression and occupational freedom, the business freedom of LegalTech companies, and consumers’ right to know and right to self-determination. However, current regulations related to LegalTech are mainly based on the Attorney-at-Law Act and the autonomous regulations of the Bar Association. These autonomous regulations reveal problems from the perspective of democratic legitimacy, as they lack formal procedures for collecting opinions from external stakeholders. Furthermore, there are concerns about fairness, since the Bar Association, which is in direct competition with LegalTech, is responsible for establishing and operating these regulations. In fact, both the content of advertising regulations and the bodies responsible for their enforcement are criticized for being lawyer-centric. Therefore, lawyer advertising regulations must protect the public nature, independence, expertise, autonomy, and credibility of lawyers, while also contributing to reducing information asymmetry in the legal services market and expanding consumer choice. The innovation and competitiveness of the LegalTech industry and its contribution to the national economy must also be considered. First, the legal form of advertising regulations needs to be restructured. In the long term, it is desirable to enhance democratic legitimacy through Presidential Decrees, whereby the Decree would set the basic principles and the details would be autonomously regulated, reflecting the particularities of the legal profession. In the short term, guidelines involving the Ministry of Justice, the Bar Association, experts, and stakeholders have also been established. Additionally, the composition of the Advertising Review Committee should be diversified to include external experts, companies, and consumers, thereby enhancing the fairness and professionalism of the review process and its outcomes. Concerns that external participation may lead to the involvement of private interests or the infringement of autonomy are excessive; in fact, incorporating diverse perspectives can enhance procedural legitimacy and address the limitations of existing self-regulation, such as the pursuit of private interests or weakened disciplinary action. In conclusion, lawyer advertising regulations should not suppress specific technologies or business models, but rather be improved into reasonable regulations based on a technologically neutral perspective, balancing fair competition in the legal services market, consumers’ right to know, and the public nature of the legal profession. This requires changes to the overall legislative framework and regulatory content.