According to the Supreme Court of Korea, when a client receives a legal opinion letter from his/her attorney regarding potential criminal liability prior to the commencement of any formal criminal process against him/her such as an investigation, there is no attorney-client privilege that prevents the legal opinion letter from being admitted into evidence during a trial. In this unique Supreme Court case {2009 Do 6788, May 17, 2012), an officer of a Korean construction company allegedly paid a bribe to a certain individual (hereinafter referred to as the "Client") in order to win a construction contract. Upon his request. the Client later received a legal opinion via email from a Korean law firm regarding his potential criminal liability as a result thereof before the formal criminal investigation process, such as an investigation by the local authorities, commenced.

The prosecutor's office subsequently seized the legal opinion letter stored in the Client's computer and, during the trial, requested the court to admit the same into evidence. An attorney from the law firm that issued the legal opinion letter to the Client was summoned as a witness and was asked to testify in open court that he wrote the opinion letter, but the attorney refused to testify based on his right to do so under the Criminal Procedure Act {"CPA").  

In light of the foregoing, the initial question before the Court was whether or not the Client had the right to refuse turning over the legal opinion letter that was found during the search and seizure. In accordance with the CPA, during a search and seizure, an attorney may refuse to tum over documents that have been maintained in his/her possession upon the request of the client due to the confidential nature of the information regarding the client. However, the Court noted that, no such protection is afforded under Korean law as to documents in the possession of the Client that the attorney has produced based on the request of the client.  

In light of the foregoing issue, the issue of whether or not the legal opinion letter was still covered by the attorney-client privilege rule became relevant. The lower court in this case held that a legal opinion letter is protected by the attorney-client privilege rule in Korea, and therefore cannot be admitted into evidence {Seoul High Court 2008 No 2778, June 26, 2009}. According to the lower court, although the attorney-client privilege rule is not statutorily based, it is derived from Article 12(4) of the Korean Constitution, which provides, in sum, that "A Person shall have the right to assistance from counsel when such person is arrested or placed into custody."  

However, the Supreme Court overruled the lower court's decision on this particular issue and opined that, "When the legal opinion letter was obtained by the Client before any formal criminal process against him such as an investigation had commenced, there was no attorney-client privilege that prevented the legal opinion letter from being admitted into evidence during trial given, among other things, the Constitutional Law provision on which the lower court relied upon to derive protection under the attorney-client privilege rule." According to the Supreme Court, the legal opinion letter in this case was therefore not excluded from evidence by application of the attorney-client privilege rule.  

Notwithstanding the foregoing, in ruling that the legal opinion letter was ultimately inadmissible, the Supreme Court treated the legal opinion letter as a type of out-of-court written statement by a witness. Under Article 314 of the CPA. an out-of-court written statement by a witness can be admitted into evidence during trial only if tile witness has testified in open court that the written statement was made by him/her {subject to certain exceptions related to the death, illness, foreign residency, etc. of the witness}.  

However, because an attorney may refuse to testify as to facts relating to his/her client that he/she learned while handling a matter upon request by tile client, the attorney in this case refused to testify as to whether the legal opinion letter was written by him. Accordingly, the Supreme Court ruled the legal opinion letter was inadmissible.