사내변호사의 독립성 및 소송대리의 한계

초록

As the number of lawyers has significantly grown in recent years, so has the number of in-house counsels. While this development is desirable in that lawyers’ participation in corporate management is essential in modern society, it also brings a new issue of legal status of in-house counsels and their work in terms of the professional independence of lawyers that has been the tenet of legal profession. Professional independence means that a lawyer is independent from his client when he accepts a case and performs his duties. In-house counsels are inevitably under the general obligations to undertake the instruction and request of employers because of the employment contract. Independence of lawyers, however, becomes the most critical prerequisite to represent clients in litigations. This is the issue that I examine in this paper: what are problems arising when employed in-house counsels represent their own companies or the employers in litigations. Can employed in-house counsels be independent from their companies? Can in-house counsels represent their own companies while upholding professional independence from them? This paper examines these issues by comparative study into those of several states and European Court of Justice. The findings of the study suggest as follows: Firstly, it is difficult for in-house counsels to be recognized independent from employers; secondly, in-house counsels’ representation in litigation vary state to state. In-house counsels’ representation in litigation is prohibited in Germany as well as by the jurisprudence of European Court of Justice while it is permitted in US, Japan as well as in the Republic of Korea; Thirdly, in order to strengthen the independence of in-house counsels, the relevant code of professional conducts should be revised to properly recognize their representation in litigation, considering other states’ situation.

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