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Jipyong News|KOREA LEGAL INSIGHT

Korea’s Codified Attorney-Client Privilege and Work Product Doctrine and Its Implications

2026.03.16

Introduction
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On January 29, 2026, Korea’s legislature passed an amendment to the Attorney-at-Law Act (the “Act”) coming into effect on February 20, 2027.  The amendment adds Article 26-2 to the Act, which codifies the attorney-client privilege (“ACP”) and the work product (“WP”) doctrine into Korea’s statutory law.1)  While the current Article 26 enumerates an attorney’s duty of confidentiality, it lacked language specifically protecting attorney communications and attorney work product.  This reform brings Korea closer to other jurisdictions that recognize and observe attorney-client privilege as a matter of substantive legal right.</div>
 
 
1. Summary of Article 26-2

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Paragraph 1 protects the confidentiality of communications between attorneys and their clients exchanged for the purpose of providing or receiving legal advice.  This protection extends to prospective clients before a formal engagement is finalized, provided the communications relate to an anticipated legal issue. 
 
Paragraph 2 establishes a statutory shield from disclosure for documents and materials—in both physical and electronic formats—prepared by an attorney in connection with matters involving litigation, investigation, or inspection. 
 
Paragraph 3 carves out 4 instances where protected confidential communications, documents, or materials may be disclosed: (1) with the client’s consent, (2) where disclosure is necessary to serve a significant public interest, such as when an attorney is suspected as an accomplice to a crime or when communications between an attorney and his/her client are being used or intended to be used to facilitate unlawful acts, (3) where disclosure is necessary for an attorney to exercise or protect his/her rights in a dispute with the client, and (4) where statutes specifically require disclosure. </div>
 
 
2. Practical and Strategic Considerations

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The new Article 26-2 transforms an attorney’s duty of professional confidentiality into a statutory right for both attorneys and clients.  For corporations, this reform vests an unprecedented right to ensure that their paper trail remains a protected asset rather than a liability.  Article 26-2 aligns legal practice in South Korea more closely with the standards adopted by leading jurisdictions concerning ACP such as the U.S.  It is a welcome departure from a long-perceived vulnerability exposing attorneys’ strategic work product to search and seizure.  Korea’s new framework seemingly offers broader protection than the Japanese model—protection is not limited to documents in the possession of attorneys but also extends to documents held by the clients themselves.2) 
 
Despite the clear statutory language, however, practical boundaries of privilege under Article 26-2 may remain largely untested during the early days of ACP and WP.  For instance, while Article 26-2 expressly provides that privilege may be waived with the client’s consent, what exactly constitutes “consent” or implied waiver is unclear.  In the absence of clear guidelines or case law, companies are advised to err on the side of caution to avoid inadvertent disclosure to third parties such as consultants, affiliates, or non-essential employees.  With the advent of new law and practice, corporations are recommended to establish, maintain, and enforce robust communication protocols, segregating legal communications from routine business matters. 
 
The use of artificial intelligence (“AI”) may further complicate risks involving ACP, such as inadvertent waiver through third-party disclosures and absence of attorney authorship.  As noted in a recent ruling from the U.S. District Court for the Southern District of New York, confidential information inputted into generative AI platforms, as well as documents created using such platforms, may not be protected by ACP or WP doctrine.3)  Given that the use of generative AI is becoming increasingly prevalent in Korean legal practice, establishing attorney oversight will be essential for corporations seeking to assert protection over AI-assisted work product under Article 26-2. 
 
The “significant public interest” exception under Article 26-2 may also pose a substantial risk of disclosure for corporations.  Generally, “public interest” is invoked in Korea’s high-profile corporate investigations and this standard may therefore serve as a primary vehicle for authorities to seek privileged communications and work product.  The practical effectiveness of Article 26-2 will depend on how the judiciary interprets this exception. </div>
 
 
3. Navigating the Ambiguities Concerning In-house Counsel

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Another point of ambiguity concerns the application of protection under Article 26-2 to in-house counsel.  While the U.S. model recognizes a broad, in personam privilege for in-house lawyers based on their professional status,4) several civil law jurisdictions—most notably France—have historically denied such protection to in-house lawyers, viewing internal counsel as lacking the independent legal status required for professional privilege.  Even so, the landscape is shifting.  On February 18, 2026, the French Constitutional Council validated a landmark law introducing confidentiality protections for in-house counsel.5)  This new framework is strictly limited to formal “legal consultations” drafted by in-house counsel.  Unlike the common law approach, this civil law in rem model accords protection based on the nature of the document rather than the professional status of the in-house lawyer.  As the Korean judiciary decides which model to adopt, corporate legal departments will likely face a period of ambiguity, navigating the gap between the broader American-style privilege and the more limited French-style confidentiality. 
 
In any event, Korea’s investigative authorities are expected to scrutinize the substance of each privilege claim rather than mere form.  Taking lessons learned from the American experience, simply copying counsel on communications,6) or labeling a document “Privileged and Confidential” is unlikely to serve as an effective shield against disclosure.  Substance over form will likely become a point of contention in future prosecutions and investigations, as authorities try to pierce ACP and WP protections by focusing on the primary purpose of the subject communications.7) </div>
 
 
Conclusion

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The introduction of ACP and WP doctrine represents a sharp departure from Korea’s existing jurisprudence, and growing pain is to be expected.  For both domestic enterprises and foreign investors, the transition period will likely require a proactive review of internal communication protocols, AI usage policies, and the role of the legal department.  Ensuring that these elements align with Korea’s new ACP framework will be critical to reaping the benefits of Article 26-2 in future lawsuits or investigations. 
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<div style="margin-bottom: 8px; font-size: 16px; line-height: normal;">1) Press Release, Ministry of Justice [S. Korea], National Assembly Approves Amendment to Attorney-at-Law Act to Introduce Attorney-Client Privilege (Jan. 29, 2026), <a href="https://www.moj.go.kr/bbs/moj/182/602965/artclView.do" target="_blank">https://www.moj.go.kr/bbs/moj/182/602965/artclView.do</a></div>

<div style="margin-bottom: 8px; font-size: 16px; line-height: normal;">2) Code of Civil Procedure arts. 197(1)(ii), 220(iv)(c) (Japan).</div>

<div style="margin-bottom: 8px; font-size: 16px; line-height: normal;">3) United States v. Heppner, No. 25-cr-00503-JSR, 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026).</div>

<div style="margin-bottom: 8px; font-size: 16px; line-height: normal;">4) Model Rules of Prof. Conduct r. 1.13(a) (Am. Bar Ass’n 2020).</div>

<div style="margin-bottom: 8px; font-size: 16px; line-height: normal;">5) Conseil constitutionnel [CC] [Constitutional Court] decision No. 2026-900DC, Feb. 18, 2026 (Fr.).</div>

<div style="margin-bottom: 8px; font-size: 16px; line-height: normal;">6) In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007).</div>

<div style="margin-bottom: 8px; font-size: 16px; line-height: normal;">7) In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021).</div>

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