A Request Posted on a Legal Platform
Recently, I came across a
request posted on an online legal services platform.
In short, the client wanted
the lawyer to do only two things. First, take the briefs the client had
written, check them only to the extent of “matching them up with the evidence,”
and file them through the e-filing system under the lawyer’s name as counsel of
record. Second, appear at hearings as counsel of record. The client would
continue, as before, to make the key oral statements in court and to answer the
judge’s questions personally. The terms: a KRW 5 million retainer covering [0]
briefs and [0] hearing appearances, with an additional KRW [00]0,000 per brief
and KRW 1 million per hearing beyond that.
At first glance, this might
look like a lottery ticket of a case — a matter that takes almost no work. But
in my view, while the request wears the outward form of litigation
representation, in substance it is much closer to a request to borrow a
lawyer’s name and license. A lawyer who approaches it with the math of “easy
work, KRW 5 million upfront” is walking into a textbook risk: alleged
violations of the Attorney-at-Law Act, disciplinary action, and potentially
civil and criminal liability. Let me walk through why.
Representation in Form, Name-Lending in Substance
The heart of this request is
that the client makes and carries out all the real decisions in the case, while
the lawyer supplies nothing but a name. The client writes the briefs; the
retained lawyer files them under his or her own name without verifying them.
The client might try to reassure the lawyer by saying that he will be getting
advice from a lawyer he knows personally, so the retained lawyer can simply
trust the work and file it. But there is no way to rely on that. The client
could just as easily run the briefs through AI, have them written however he
likes, and then tell the retained lawyer, “Just file this under your name as if
you wrote it.”
When a lawyer files, under
his or her own name, briefs written by a third party without reviewing the
substance of the case, that conduct can very well be viewed as name-lending in
practice. Korea’s Attorney-at-Law Act prohibits lawyers from partnering with
non-lawyers and from allowing others to use their name (Article 34), and it
imposes criminal penalties for violations (Article 109, among others). This is
an entirely different matter from a party handling his or her own case. The law
allows parties to represent themselves; what it does not allow is putting a
lawyer’s name on a case while someone else actually runs it, because that
undermines the very foundation of the legal profession. At a minimum, it is
clear that such conduct can be grounds for discipline under the rules of
professional ethics.
One more point deserves
emphasis. Even if the client and the lawyer agree between themselves that the
lawyer will “only file and appear” — that is, file whatever the client sends
under the lawyer’s name without reviewing it — in the eyes of the court and the
opposing party, the lawyer is still counsel of record with full authority and
full responsibility. Privately, the lawyer may think of the job as a mere
“filing service,” but to the outside world, he or she is the representative
responsible for the entire case.
In Court and on Paper, the Name on the Brief Answers
Once a party retains a
lawyer as counsel of record, it is counsel who, as a rule, leads the oral
argument. A party who attends may, of course, correct factual statements made
by counsel or add his or her own views. But a party who stands a lawyer at his side
and then personally presents every legal argument from start to finish is out
of step with how the judge manages the proceedings. In an actual courtroom,
there is a very good chance the judge will say, “You have retained counsel, so
please have your counsel organize and present your position.”
Nor can counsel stand up in
court and say, “I am counsel in name only; my client will be doing all the
talking.” If the judge asks for clarification on the spot or poses a question
about the issues, and counsel cannot answer and has to hand the question off to
the client, that lawyer will lose the court’s trust. The appearance becomes a
mere formality, and the damage ultimately falls on the case, the client, and
the lawyer.
The same is true of the
briefs. If a brief written by the client contains defamatory statements about
someone else, false facts, or legal errors that are fatal on the merits, the
legal and ethical responsibility rests with the lawyer whose name is on it,
because it was filed under counsel’s name. The excuse “I just filed what my
client wrote” works neither in court nor in a disciplinary proceeding.
There is an even more
practical risk. If the case goes badly, the same client who once said, “I’ll
write all the briefs — you just put your name on them and file them,” often
changes course and sues the lawyer for damages, or files a complaint with the Korean
Bar Association, claiming that “we lost because counsel failed to properly
review the briefs.” Even though it was the client who proposed the unlawful
arrangement in the first place, when things go wrong, the blame lands on “the
lawyer who didn’t know the Attorney-at-Law Act and broke it.” And however
narrowly the engagement letter defines the scope of work, as discussed above,
it cannot narrow the lawyer’s status and responsibility as counsel of record
toward the outside world.
Why Do Some Lawyers Accept These Offers?
To be honest, what troubles
me more is that there are lawyers who accept offers like this. I would like to
ask them whether they truly do not realize that they are, in effect, lending
out their name as lawyers. Even a moment’s thought about how dangerous this is
should make it clear that this is not a case one can take on lightly.
The United States takes a
very strict approach to legal ethics. For example, Rule 11 of the Federal Rules
of Civil Procedure (FRCP) treats the very act of a lawyer signing a filing as a
certification to the court that, after a reasonable inquiry, its contents are
grounded in fact and law. If that certification turns out to be violated,
sanctions can be imposed on the lawyer personally. In other words, a signature
is not a mere formality; it is a statement of accountability.
In Korea, by contrast,
mandatory legal ethics training is often treated as just another box-checking,
one-size-fits-all course. As a result, even when lawyers find themselves
squarely in a situation that raises an ethical problem, some do not even recognize
it as an ethics issue. I believe that is the biggest problem of all.
Before Blaming the Legal Profession
We also need to take a hard
look at the culture on the client side. Our society tends not to value lawyers
with a strong ethical sense so much as to choose whichever lawyer charges even
slightly less. I worry that, as these choices accumulate, the legal market as a
whole is gradually losing its ethical standards.
People often say, “Lawyers
have ruined this country.” But looking at a case like this, it is hard to say
that statement is entirely true. The legal profession did not simply collapse
on its own; some clients are actively encouraging lawyers to abandon their
ethics and to commit an unlawful act — name-lending. Blaming only those who go
along with it, while leaving those who encourage it untouched, is seeing only
half of the problem.
That said, none of this
makes the lawyer’s responsibility any lighter. When a lawyer receives an offer
like this, the right response is not to take the case but to firmly decline it
and, if necessary, to raise the issue. Yet because some lawyers do accept these
offers, requests like this keep appearing on platforms.
A lawyer’s name is not just
a signature. The moment it appears on a brief, the lawyer is promising the
court, the opposing party, and the client that he or she will stand behind the
contents of that brief and the outcome of the case. A request to borrow only
the name, on the premise that the lawyer will not take that responsibility, is
not an offer any lawyer can accept, whatever the fee. I would also like to say
this to future clients: if you need a lawyer’s help, let the lawyer fully
review your case and take responsibility for it. “Name-only representation,”
somewhere in between, is never a safe choice — not for the client, and not for
the lawyer.
