The possibility of restrictions on search and seizure of a law office

In the past, search and seizure of evidence, such as documents prepared or kept by lawyers, were rarely conducted. Investigative agencies exercised self-restraint in searching law offices, and the protection of confidentiality between lawyers or law firms and their clients was considered a key element in guaranteeing the right to defense, making it difficult to imagine law firms being subject to search and seizure. However, this explanation pertains to the past, as searches and seizures of law offices now occur more frequently. For a lawyer to provide sufficient and appropriate legal advice to a client, it is essential to have comprehensive information about the case or matter being consulted. In particular, the client must not withhold information that may be unfavorable to them. However, for a client to disclose even unfavorable information to their lawyer, it must be ensured that the information provided will not be disclosed to external parties. If a lawyer can refuse to testify but cannot refuse seizure, investigative agencies may circumvent the purpose of the rule granting the right to refuse testimony by employing indirect investigative methods, such as search and seizure, to collect evidence that could substitute for testimony. Comparing Article 149 and Article 112 of the Criminal Procedure Act, such circumvention is possible in practice. The Supreme Court's decision on May 17, 2012 (2009Do6788) resolved the issue as one of hearsay evidence rather than recognizing attorney-client privilege, citing the lack of explicit provisions in the current law. This article examines a recent case in which the search and seizure of a law office became a contentious issue, analyzing whether the matter, often discussed in the context of attorney-client privilege, can be resolved through the interpretation of existing provisions of the Criminal Procedure Act. In conclusion, similar to the findings of the fact-finding court in the 2009Do6788 ruling, this article argues that the issue should be resolved by reflecting the Supreme Court and Constitutional Court’s precedents on the right to attorney participation and the legislative intent of the Criminal Procedure Act from the perspective of constitutional criminal procedure.