What This Case Was Really About
A recent Supreme Court decision held that an attorney who reused
financial and personal data obtained through one lawsuit as evidence in a
separate, related case could not be criminally punished, since the reuse fell
within the scope of a legitimate defense. This post examines what the case
actually involved, why many attorneys already work this way in practice, and
why the ruling — while sound within the context of attorney conduct — leaves
open a broader risk when similar reuse of information occurs directly between
litigants.
https://news.koreanbar.or.kr/news/articleView.html?idxno=35455
I recently came across a report in a legal newspaper describing a
Supreme Court decision holding that an attorney who had obtained financial
transaction records and personal information through a civil lawsuit, and then
submitted that same material as evidence in a different case he was also
handling, could not be criminally punished for doing so. The Court's reasoning
was that the reuse fell within the scope reasonably necessary to exercise the
client's right of defense.
The reported facts were as follows. Attorney A, while representing
the defendants in a wage and severance pay claim, obtained the plaintiffs'
financial transaction records and income certification documents through the
court in that proceeding. He then submitted the same materials as evidence in a
separate civil case that turned on identical issues. The first and second
instance courts found this to be a violation of the Act on Real Name Financial
Transactions and Confidentiality and the Personal Information Protection Act,
and convicted him accordingly. The Supreme Court, however, held that although
the conduct technically satisfied the elements of the offense, it was
sufficiently likely to fall outside the bounds of what is socially acceptable,
and therefore its unlawfulness could be negated. The Court accordingly vacated
the conviction and remanded the case.
Reading this decision prompted several thoughts, which I want to set out below.
The first point worth clarifying is what this case actually turned
on. At first glance, one might assume that the attorney simply reused his own
client's materials across two separate cases (Case A and Case B) that he was
handling. That is not, in fact, what happened. More precisely, the materials in
question were submitted in Case A by X — the opposing party to the attorney's
own client — and the attorney, despite not representing X and without X's
consent, went on to submit those same materials as evidence in Case B. In other
words, the issue was not the attorney's use of his own client's information,
but rather his diversion of the opposing party's information, without that
party's consent, into an entirely different proceeding.
Formal Document-Production Requests and the
Realities of Practice
This is a pattern I have witnessed firsthand in practice. When I
have wanted to bring materials submitted by an opposing party in one case into
a different case, I have always relied on the formal procedure for requesting
the production of documents through the court. It appears, however, that a
considerable number of attorneys do not always go through this formal channel.
The reasons for this can probably be reduced to roughly three.
First, a request for document production may be denied at the court's
discretion — some benches are receptive to admitting such evidence, while
others are not. Second, the formal procedure takes a substantial amount of
time. Third, there is a general perception that it is simply cumbersome.
Reconstructing the reasoning behind this practice, it seems to rest on a kind
of practical convenience: if the opposing party is the same person, even though
the party the attorney represents differs from case to case, the two
proceedings are not fundamentally different — and since the same arguments made
in one case will likely be repeated in the other regardless, why not use the
same materials directly?
Assessing the Supreme Court's Decision
My overall assessment of this decision is largely positive. It seems
likely that a considerable number of attorneys have, in practice, used
materials in a similar manner. Had a conviction been affirmed in this case, a
wide range of attorneys who have engaged in comparable conduct could have found
themselves exposed, in a cascading fashion, to the risk of criminal liability.
That risk would have become especially concrete in situations where the
challenge was raised not by the client but by the opposing party. Viewed from
this angle, the Supreme Court's decision can fairly be characterized as a
reasonable conclusion that aligns with how litigation is actually conducted in
practice.
A Remaining Concern
There is, however, a concern worth flagging. The risk is that this
ruling, once removed from the specific context of an attorney conducting
litigation, could be misused directly between litigants themselves. Attorneys,
bound by professional duties of care, can generally be expected to exercise
appropriate caution. But there are real cases in which a litigant, acting on
their own behalf, directly demands that the opposing party hand over materials
concerning some third person.
In one matter I handled, party B in Case A demanded that the
opposing party, C, produce materials concerning D, a third party. Ordinarily,
such materials would need to be obtained from D through the formal procedure.
But because D is not a party to the litigation, a direct request to D would
likely be refused — so B instead sought to obtain the materials indirectly
through C, the opposing litigant. Had C been represented by counsel, such a
demand could have been declined. In Korea, however, representation by counsel
is not mandatory in small-claims cases, so a party to a small claim may comply
with such a demand without giving the matter much thought. If materials
obtained in this way were then used as the basis for a separate lawsuit against
D, D could find themselves forced to retain counsel to respond to litigation
they never anticipated.
Closing Thoughts
In the end, this Supreme Court decision is significant in that it
clarifies the proper scope of an attorney's conduct of litigation. At the same
time, if the underlying legal reasoning is extended to the broader context of
information being diverted directly between litigants, it may come into tension
with another important value: the protection of personal information. That
tension is worth keeping in mind.
