On January 29, 2026, the National Assembly passed an amendment to the Attorney-at-Law Act that expressly codifies attorney–client privilege (“ACP”). This amendment marks a significant shift in practice, as it goes beyond the traditional, passive framework of a lawyer’s duty of confidentiality and establishes an affirmative right for clients to assert confidentiality during investigations or regulatory proceedings.
Key Provisions of the Amended Attorneys Act (Article 26(2))
- Codification of the Client’s Right: Attorney–Client Privilege (ACP) is recognized not only as an obligation of attorneys but also as a legal right that may be asserted by both clients and prospective clients.
- Expanded Scope of Protection
- Communications (Paragraph 1): All confidential communications made for the purpose of obtaining legal advice are covered.
- Work Product Protection (Paragraph 2): Documents and materials prepared by attorneys for litigation, investigations, or regulatory proceedings—including interview summaries and legal memoranda—are also protected.
- Retroactive Application (Supplementary Provision): The amended law applies retroactively to communications and materials created prior to its effective date (i.e., those arising before the law enters into force, which is scheduled one year after promulgation).
Frequently Asked Questions on Key Practical Issues
Question 1.
Are communications at the pre-engagement (pre-mandate) stage protected under ACP?
Answer
Yes. The amended law expressly includes “persons who intend to become clients” within the scope of protection. Accordingly, strategic discussions held during initial consultations prior to the formal engagement of counsel may also be protected under ACP, provided that confidentiality is maintained.
Question 2.
Is ACP limited to criminal proceedings?
Answer
No. ACP may be asserted broadly not only in criminal investigations conducted by prosecutors or the police, but also in administrative investigations by authorities such as the Korea Fair Trade Commission, the Financial Supervisory Service, and the National Tax Service, as well as in civil and administrative litigation. However, given that detailed issues may vary depending on the nature of each proceeding, it is advisable to seek expert legal advice until consistent case law is established in practice.
Question 3.
What is the treatment of pre-existing documents attached to emails sent to attorneys?
Answer
As a general rule, pre-existing documents are not automatically protected. ACP protects “communications” between attorneys and clients and attorneys’ “work product,” but does not extend to underlying facts or documents that exist independently and may serve as evidence. Accordingly, the mere fact that internally prepared documents are transmitted to an attorney does not, by itself, make such materials non-disclosable.
Question 4.
Does copying an attorney on an email (CC) automatically trigger ACP protection?
Answer
No. The primary purpose of the communication must be to obtain legal advice, and there must be substantive involvement by the attorney. Where an attorney is merely copied on a routine business email without a genuine legal advisory purpose, ACP protection is unlikely to be recognized.
Question 5.
How should one respond if law enforcement attempts to seize materials during a search and seizure despite ACP claims?
Answer
As a general rule, existing documents are not automatically immune from seizure at the scene. The amended law does not provide a mandatory mechanism to immediately suspend enforcement actions during execution. Accordingly, it is necessary to clearly assert ACP protection verbally and in writing at the time of the search and formally raise objections.
Implications
- Strengthening Communication Security
Communications with attorneys should be conducted through dedicated and confidential channels (e.g., emails clearly marked as confidential), and sharing with third parties should be minimized. - Document Management and Labeling
As a matter of best practice, legal memoranda and related documents should be clearly marked as “ACP (Attorney–Client Privilege) Protected Materials” to ensure proper internal handling and control. - Review of Internal Guidelines
The scope of whether communications with in-house counsel or work products prepared by in-house counsel are protected under ACP has not yet been definitively established in practice. However, considering the purpose of the relevant provision (Article 1), there is a substantial basis for arguing that such materials may fall within the scope of protection. Accordingly, companies should enhance the functional independence of in-house counsel and review internal policies and procedures to reinforce the likelihood that such communications and materials will be recognized as protected under ACP.
