The National Assembly passed an amendment to the Attorney-at-Law Act on January 29, 2026, formally codifying the attorney-client privilege (“ACP”). The amendment expressly recognizes the confidentiality of communications between attorneys and their clients under Korean law, an issue that had previously been addressed only through lower-court decisions and evolving practice rather than through clear statutory authority.
This legislative development is expected to have significant implications for corporate responses to investigations by the Korea Fair Trade Commission (“KFTC”) and for competition compliance more broadly, particularly with respect to the handling of sensitive legal communications and related materials.
I. KEY FEATURES OF THE ACP FRAMEWORK
The amended Attorney-at-Law Act provides that attorneys and their clients have the right to refuse disclosure of (i) confidential communications exchanged for the purpose of providing or receiving legal assistance, and (ii) documents or materials prepared by an attorney, in relation to an engagement, for purposes of litigation, investigation, or regulatory inquiry. The protection for confidential communications also extends to prospective clients.
There are however certain exceptions. The privilege does not apply to the foregoing protected communications, documents, or materials where (i) the client consents to disclosure, (ii) there is a compelling public interest, including where the attorney is conspiring with the client or otherwise participating in the client’s criminal or other unlawful conduct, such as destruction of evidence, harboring an offender, or handling of illicit property, or where the client uses or seeks to use such communications, documents or materials for unlawful purposes, or (iii) another statute expressly provides otherwise.
II. IMPLICATIONS FOR RESPONDING TO KFTC INVESTIGATIONS
1. Anticipated Changes
Companies will now have an express statutory basis to decline disclosure of sensitive communications with counsel and related legal analyses or memoranda when facing KFTC investigations. The codification of ACP also provides greater clarity over the scope of such protection. In this respect, the amendment represents a meaningful development that is expected to strengthen companies’ ability to protect their interests and respond effectively to KFTC investigations.
Under the KFTC’s Rules on Investigation Procedures Article 11(2), compliance-related functions, including legal and compliance teams, are in principle excluded from the scope of departments subject to investigation. In practice, however, because document collection is conducted on a department-by-department basis, materials have still been collected from business units, including materials containing communications with in-house legal or compliance teams or memoranda from external counsel. As a result, privileged communications and legal advice have at times been swept into the scope of document collection or digital forensics during investigations.
With the express recognition of ACP, companies will be better positioned to request the exclusion of privileged communications and related legal materials during on-site investigations and initial document collection, and, during the subsequent digital evidence screening process, to seek their return, deletion, or filtering, including through the use of keywords or privilege markings.
2. Response Strategies
(1) Use of privilege markings
Companies should consider clearly marking communications with counsel and related legal advice to indicate that they are privileged and confidential. Common practice includes the use of headers such as “Privileged and Confidential,” “Attorney-Client Privileged,” or similar privilege legends.
Clear privilege markings can be especially helpful during the KFTC’s on-site investigations. Investigators typically review materials to assess their relevance to the subject of the investigation, and where emails or other documents prominently display privilege legends at the outset, companies may be better positioned to request that such materials be set aside on privilege grounds without further substantive review.
Privilege markings can also play a practical role in digital collection and review. Given the time constraints of the KFTC’s on-site investigations, investigators often collect materials based on keyword searches, folder or document names, or custodian-based filters, with more detailed review taking place at a later stage. In this context, consistent use of privilege legends may assist in identifying materials that should be excluded from initial collection and in facilitating the subsequent identification and segregation of privileged materials during the digital evidence screening process.
Where documents or communications lack clear privilege markings, disputes may be more likely to arise as to whether they fall within the scope of ACP. Consistent use of privilege legends may therefore help reduce uncertainty and streamline privilege-related discussions when facing a KFTC investigation.
(2) Attention to exceptions and preservation of confidentiality
Companies should be mindful of the statutory exceptions to ACP and the need to preserve confidentiality. The privilege will not apply where the client uses or seeks to use privileged communications or attorney work product for unlawful purposes. Companies should therefore ensure that employees understand that communications with counsel must not be used in furtherance of any unlawful conduct. This underscores the importance of maintaining robust internal controls and providing appropriate training for employees.
In addition, ACP protection may be put at risk where confidentiality is not properly maintained. Communications with counsel and related legal materials should not be shared with third parties who are not involved in the relevant legal matter. Companies should consider limiting distribution of legal communications to necessary recipients and ensuring that any further internal sharing of the communication takes place upon consulting with the legal or compliance team.
III. IMPLICATIONS FOR COMPETITION COMPLIANCE
1. Anticipated Changes
Companies have at times been cautious about conducting internal legal reviews or compliance audits, given concerns that internal assessments of potential violations could later be used as evidence that the company intentionally engaged in misconduct or was aware of the potential issues but failed to address them. The codification of ACP is likely to reduce these concerns and encourage companies to take a more proactive approach to internal reviews, including identifying and addressing potential issues at an earlier stage.
2. Response Strategies
(1) Role of in-house counsels and internal processes
It remains to be seen to what extent communications between in-house counsel and employees will fall within the scope of ACP. Further guidance and practice are likely to develop over time, including with respect to the conditions under which privilege may be recognized for in-house counsel communications. In the meantime, companies may wish to take steps to reinforce the independence of in-house counsel within the organization and to clarify the scope of their legal advisory role.
In particular, it is advisable to define clearly the roles and responsibilities of the in-house counsels so that their legal advice is not viewed as being intertwined with business decision-making. Companies may also consider establishing internal protocols to make clear when communications are for the purpose of obtaining or providing legal advice, and to ensure that internal legal reviews are conducted within a clearly identifiable attorney-client framework. Where appropriate, coordination with external counsel may also be considered.
(2) Upjohn warnings
In the course of internal investigations or compliance reviews, companies may wish to consider the appropriate use of Upjohn warnings. The concept originates from the U.S. Supreme Court’s decision in Upjohn Co. v. United States and refers to a notice given by counsel conducting an internal review that counsel represents the company, not the individual employee, and that any privilege belongs to the company rather than to the employee.
Providing such notice can help ensure the employees understand that even where communications with counsel may be protected, the privilege is held by the company and may be waived by the company where appropriate, for example in the context of cooperation with regulators, submission of materials to the KFTC, or leniency applications. Clear use of Upjohn warnings may also help mitigate potential conflicts between the company and individual employees that could arise during an investigation.
(3) ACP-related compliance training
The introduction of ACP does not mean that all legally related materials will automatically be protected. Companies may therefore wish to incorporate ACP-related guidance into their regular compliance training, including the conditions under which privilege may apply, the relevant exceptions, and the importance of maintaining confidentiality.
Such training can help employees understand when communications with counsel may be protected, the need to avoid misuse of privileged communications or attorney work product, and the risks that privilege protection may be lost if confidentiality is not properly maintained. Regular training in this area may also help reduce uncertainty in practice and support more consistent handling of privileged communications across the organization.
IV. CONCLUSION
The codification of ACP is expected to influence how companies approach KFTC investigations and competition compliance, with greater emphasis on identifying and addressing risks at an earlier stage and on preventative measures, rather than focusing primarily on reactive responses once an investigation has begun. In particular, in areas such as KFTC investigations, where extensive document collection may occur and where administrative sanctions and potential criminal referrals can arise in parallel, the availability and scope of ACP will likely become an important consideration in corporate response strategies.
At the same time, a number of practical questions remain, including how broadly the scope of ACP will be interpreted in practice and how privilege claims will be handled during KFTC investigations. Greater clarity is likely to emerge over time as investigative practice develops, and court decisions accumulate.
In the meantime, companies may wish to review their document management practices and internal compliance frameworks in light of the new ACP regime and consider whether adjustments are needed to support more consistent handling of privileged communications and legal materials.
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[Korean version]
