[Korean Law Insights] Introduction of Attorney–Client Privilege in Korea

[Published on March 3, 2026 edition of the "Korean Law Insights" column in the Korea Daily’s Economic Expert Section]

• Passed by the National Assembly; scheduled to take effect one year after promulgation

• Effective management and implementation will be key to ensuring its role as a safeguard of the rule of law

On January 29th, the Korean National Assembly passed an amendment to the Attorney-at-Law Act that formally codifies attorney–client privilege. While Korean attorneys have long been subject to an ethical and professional duty of confidentiality, the existence of a corresponding evidentiary privilege allowing attorneys and clients to refuse disclosure of legal advice during investigations or court proceedings had remained unclear. The newly introduced provision (Article 26-2) addresses this gap and represents an institutional effort to enhance the effectiveness of the right to counsel and the right to defense.

The amendment has two principal components. First, confidential communications exchanged between an attorney and a client (including a prospective client) for the purpose of providing or receiving legal assistance in connection with legal matters may be withheld from disclosure. Second, documents and materials prepared by an attorney in connection with a retained matter for purposes of litigation, investigation, or examination—including electronic data—are, as a general rule, protected. This framework is expected to have practical significance not only in criminal proceedings but also in administrative investigations involving areas such as competition law, taxation, and financial regulation. Exceptions apply where the client has consented to disclosure; where the information has been used, or is likely to be used, in connection with a crime; or where the attorney has participated in criminal activity or the destruction of evidence, among other circumstances in which a substantial public interest is recognized. The amendment is scheduled to take effect one year after promulgation, and its protections will also extend to communications and materials created prior to the effective date.

The United States has long recognized attorney–client privilege as a common law doctrine, under which internal corporate communications are protected when made for the purpose of obtaining legal advice. This protection is supplemented by the Work Product Doctrine, which shields materials prepared in anticipation of litigation and helps prevent attorneys’ legal strategies and analyses from being disclosed through discovery. Meanwhile, U.S. law provides a well-developed framework governing both the conditions of the privilege and the risks of its loss, including waiver through third-party disclosure, the treatment of inadvertent disclosure, and exceptions for crime or fraud.

In Korea, the effectiveness of attorney–client privilege will ultimately depend on how it is managed and implemented in practice. Key issues are likely to arise in the context of searches and on-site investigations, including how to identify materials created for legal advice purposes, how to screen and segregate forensic images and electronic communications, and how far protection should extend to documents that combine in-house legal advice with business or management considerations. In addition, for Korean companies subject to U.S. litigation and discovery, materials protected under Korean law may be treated differently under U.S. procedural standards. In particular, where third parties such as accountants, consultants, or translators are extensively involved, there is a heightened risk that confidentiality may be weakened. Accordingly, it is critically important to segregate legal advisory channels, limit the recipients of privileged communications, establish clear document access controls and retention systems, and maintain procedural frameworks to calmly and effectively assert privilege during investigations and enforcement actions.

Attorney–client privilege in Korea is not intended as a means to evade regulation, but rather as a legal safeguard that supports lawful decision-making and effective compliance. As the legal framework becomes firmly established, it is anticipated that internal investigations and compliance programs will not be hindered, but instead will be strengthened through improved fact-finding and voluntary remediation.

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Jin Hee Lee/K-Law Consulting Korean Attorney

[Reference link in original Korean]

https://www.koreadaily.com/article/20260303091536481