차단막을 이용한 이익충돌 회피

초록

With the rapid expansion of law firms in Korea, the issue of conflicts of interest is becoming the most complicated and problematic in law firm practice. One of the matters unsolved and most troubling is that of screening. With this situation in mind, this paper is to review the feasibility of the screening mechanism to avoid conflict of interest in Korean context. This paper first reviewed the related materials published in U.S. to locate the exact point of screening issue, to find out their answers and rationale to them, and to draw implications for Korean society. Based on the findings from the review, this article argues that we may permit screening as a means of rebutting the assumption of imputed disqualification in case of lawyer’s lateral movement from one private law firm to another, but only in very conditional way. The preconditions for the permission of screening in Korea are as follows: 1. It needs to be assured that screening can not cure the concurrent conflicts interest in any way. Without lawyer’s movement, there is no screening. 2. Law firms which are too small to prevent inadvertant leaks of client’s confidential information or which do not have separate offices located far away from each other enough to prevent casual contacts between the infected lawyer and the other lawyers in the law firm, should not be allowed to mobilize screening. Screening is only for big, if not mega, law firm with multi-city offices. 3. Screening should be set up timely, i.e. before the probability of the intentional or inadvertant communication with the imputed lawyer rises. In case the conflicts of interest be detected during recruiting stage, then screening should begin before his first working day in the new law firm. Screening after motion is in itself a proof of ineffectiveness of screening. 4. Immediate notification to all the clients who have stakes in the screening, including the current client, is also important because it will alert the [former] client and allow chances of motion against the ineffective screening. 5. The burden to prove all the conditions to be fulfilled shall lie on the law firm who is willing to screen his lawyer. 6. The conditions to be fulfilled by law firm need to be codified in black letter. Without codification, it would be highly difficult for the court to coherently determine the right way of screening and for law firm to know what to present to prove the effectiveness of screening under use. Ambiguities will easily lead to the abuse of screening. All listed above, this article added, are not exhaustive but only minimum requirements for effective screening, and are not easy things to fulfill. Still obviously enough, major law firms in Korea should follow stricter rules on conflicts of interest admittable to the global legal market if they really want to survive and prosper in the global era.

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