Cancellation of Seizure of Legal Opinion & Evidence in Korean Criminal Prosecution (2024Mo730)
On February 20, 2025, the First Division of the Supreme Court of Korea (Chief Justice Shin Sook-hee) issued a significant ruling in 2024Mo730, canceling the Korean prosecution’s seizure of approximately 120,000 emails and related materials that included legal opinions exchanged between criminal defendants and their Koraen defense counsel. IPG Legal advises proactivity and demanding that your lawyers in Korea share all sensitive data via a secure cloud drive. For additional articles in Korean Criminal Law see: IPG Legal’s Criminal Law Archive, and for articles on Korean Constitutional Law see: IPG Legal’s Constitutional Law Archive.
This decision comes shortly after the Korean National Assembly passed amendments strengthening statutory protections surrounding attorney–client confidentiality and privilege. While Korea has historically lacked a codified “attorney–client privilege” comparable to that in common law jurisdictions, this decision confirms that the constitutional right to counsel under Article 12(4) imposes meaningful limits on investigative seizure powers. However, as mentioned before, proactivity is still advised.
Background: Attorney-Client Confidentiality in Korea
- On December 30, 2022, the Seoul Southern District Court acquitted all defendants.
- On February 2, 2024, the Seoul High Court acquitted the defendants after the indictment was amended.
- On January 9, 2025, the Supreme Court of Korea dismissed the prosecutor’s appeal.
- While the appeal in the case was pending, prosecutors sought and obtained a separate search and seizure warrant on July 5, 2023, for alleged violations of the Specific Economic Crimes Act of Korea (bribery-related allegations unrelated to the prior fraud case).
On July 6 and 7, 2023, investigators seized:
- Mobile phones of the former CEO Jang and others
- Electronic storage devices of a company
- Computer-stored electronic information
After screening, prosecutors seized approximately 120,000 emails, including:
- Legal opinions
- Statements and examination materials
- Cross-examination preparation documents
- Email exchanges between CEO Jang and his lawyers
These materials were created during active defense representation in the prior criminal proceeding.
The Legal Issue: Can Prosecutors Seize Defense Counsel Communications?
The central question in the case was whether investigative authorities may seize documents created during confidential communications between a suspect/defendant and defense counsel in a criminal case in Korea.
The Supreme Court of Korea framed the issue as a constitutional right to counsel.
It stated:
To fully exercise the right to receive assistance of counsel, advice and consultation through meetings between suspect/defendant and defense counsel must be guaranteed, and the contents thereof must be completely kept confidential.
Importantly, the Court clarified that this principle applies not only to in-person consultations but also to:
- Emails
- Written legal opinions
- Litigation strategy memoranda
- Documents created in the course of criminal defense communications
This extends constitutional protection beyond physical meetings and into digital legal correspondence – a critical point in modern investigations.
Limited Exceptions Recognized by the Supreme Court of Korea
The Court acknowledged narrow exceptions where seizure may be permissible:
- Client Consent: Where the suspect/defendant consents to the seizure of legal opinions.
- Public Interest Necessity: Where there is a compelling public interest, such as:
- The defense lawyer acting as an accomplice.
- The lawyer’s involvement in criminal or illegal conduct.
In this case, the Court found:
- No evidence that the lawyers were accomplices.
- No showing that seizure of defense communications was indispensable to proving the separate bribery charges.
- No demonstration that the materials had evidentiary value so essential as to override constitutional protections.
The Supreme Court of Korea placed significant weight on context, noting that:
- The seizure occurred while the appeal in the prior case was still pending.
- The seized materials concerned the legal defense strategy in the ongoing criminal proceeding.
- The warrant concerned separate charges.
The Court concluded that the timing and nature of the seizure infringed the defendants’ constitutional right to legal assistance. Furthermore, the Korean Supreme Court rejected the argument that seizure was “inevitable or essential” to criminal investigation.
Korean Attorney–Client Privilege Legislative Reforms
The above ruling was issued shortly after the Korean National Assembly passed amendments strengthening statutory recognition of attorney–client confidentiality. While Korean law continues to evolve in this area, the Korean Supreme Court’s reasoning signals that constitutional protections may operate independently of statutory language.
Conclusion
The Korean Supreme Court’s decision is significant; however, caution and proactivity remain necessary. For many years, Korean criminal procedure law permitted broad data seizures, often followed by post-seizure screening. In complex corporate and financial investigations, this has resulted in the collection of volumes of communications, including exchanges between defendants and their legal counsel. Unlike common law jurisdictions, where attorney–client privilege operates as a long-established evidentiary shield, Korean law historically lacked a clearly articulated and consistently enforced doctrine preventing such seizure.
In practice, this meant:
- Legal defense-related emails were swept into forensic collections.
- Screening procedures varied in rigor.
- The burden frequently shifted to the defense to challenge an overbroad seizure after the fact.
- Constitutional arguments were raised, but relief was not consistently granted.
This ruling does not eliminate those structural realities. It does not establish a comprehensive evidentiary privilege regime comparable to U.S. or U.K. standards. Nor does it create an automatic exclusionary framework for all materials touching attorney communications. Instead, it clarifies that when legal opinions are clearly identifiable as defense communications in a criminal case, seizure generally violates the constitutional right to assistance of counsel unless justified by “public interest” exceptions.
The Supreme Court of Korea still recognizes exceptions grounded in “public interest necessity,” a concept that remains open-ended and fact-dependent. As such, the practical boundary between permissible and impermissible seizure will continue to be litigated.
It is also notable that this protection required the Korean Supreme Court’s intervention after seizures already occurred. Accordingly, this decision should be viewed as a judicial reminder – not an institutional overhaul. The protection of defense communications in Korea has evolved unevenly, and its application will depend heavily on judicial oversight in individual cases.
For companies, executives, and individuals, the prudent assumption remains that digital investigations in Korea can be broad, and proactive legal structuring of sensitive communications continues to be essential.
About IPG Legal’s Law Offices in Korea
IPG Legal is an international law firm advising multinational corporations, foreign executives, growth-stage companies, and individuals on cross-border regulatory, criminal, corporate, and compliance matters in Korea. The law firm is known for practical, business-driven solutions and for navigating complex investigations involving parallel civil and criminal exposure in Korea. The law firm is consistently ranked among the top dispute resolution law firms, and its attorneys are consistently ranked among the top lawyers in Korea.
by Sean Hayes
Sean Hayes is a senior foreign attorney for IPG Legal. Sean is a former law professor and the first non-Korean to work for the Korean court system. He advises foreign corporations, individuals, and executives on Korean criminal exposure, regulatory risk, labor disputes, shareholder conflicts, and cross-border litigation. He is widely recognized for providing street-smart counsel in high-stakes matters involving government investigations and complex commercial disputes.