1.

Outlook for KFTC and Agency Investigations Following the Introduction of Attorney–Client Privilege

On January 29, 2026, the National Assembly passed an amendment to the Attorney‑at‑Law Act guaranteeing confidentiality between lawyers and clients (Attorney‑Client Privilege, hereinafter “ACP”).

ACP is a well-established right in common‑law jurisdictions. It protects confidential communications between a client and a lawyer for the purpose of seeking legal advice from compelled disclosure. While jurisdictions such as the United States, the European Union, the United Kingdom, and Japan have long recognized ACP, Korea historically did not fully acknowledge this right due to the lack of statutory basis.

The applicability of ACP has been a point of contention not only in criminal proceedings, such as searches and seizures, but also in administrative investigations, including those conducted by the Korea Fair Trade Commission (“KFTC”). For example, in April 2023 the KFTC amended the “Rules on KFTC Investigation Procedures” (KFTC Notice No. 2023-11) to add Article 11(2), which provides that compliance departments should generally be excluded from the scope of investigations, subject to certain exceptions. However, as these rules are merely internal procedures, they were insufficient to fully safeguard ACP and the defense rights of investigated parties.

Against this background, the passage of the Attorney‑at‑Law Act amendment that expressly codifies ACP is highly significant. The amendment is expected to strengthen the right to legal representation for investigated companies, enhancing their ability to defend themselves in KFTC and other administrative investigations, and it is likely to lead to substantial changes in the investigation procedures and practices of the KFTC and other administrative agencies.
 

2.

Specific Provisions of the Amended Attorney-at-Law Act
 

3.

Implications for Administrative Investigations by the KFTC and Other Agencies

The precise scope of ACP under the recent amendment likely will be a subject of ongoing discussion. Below we summarize what we currently expect to be the implications for administrative investigations by the KFTC and similar authorities.
 

(1)

With the introduction of ACP, communications with counsel, legal advice records, and compliance deliverables receive statutory protection. This should allow companies to conduct risk assessments and implement improvements more proactively, while allowing them to evaluate legal exposures and seek legal assistance from counsel more securely.
 

(2)

It is anticipated that, during administrative investigations such as on-site inspections by the KFTC, companies will be able to more proactively request protection of materials held by their legal and compliance departments and other ACP‑covered documents. In the past, legal-review materials prepared by legal and compliance teams have at times been requested and submitted during administrative investigations by the KFTC and other regulators, and materials intended solely to preemptively assess potential legal risks have sometimes been misinterpreted as evidence of violations or as indicating awareness of such violations. The introduction of ACP should help protect many of these materials during regulatory inquiries.
 

(3)

Although the amended law does not take effect until one year after its promulgation, its supplementary provisions extend protection to counsel communications, documents, and materials created before that effective date. Accordingly, even in KFTC investigations that take place before the law’s effective date, if ACP-covered materials become subject to investigation/disclosure, companies may have grounds to request protection of those materials under the amendment’s purpose and relevant KFTC procedural rules. To this end, companies should promptly formalize ACP labeling for communications with attorneys and take the necessary measures to meet ACP requirements.
 

(4)

As there are currently no concrete standards or precedents yet reviewed or established by the courts, the KFTC, the Ministry of Justice, the Bar Association, or any other relevant bodies under the newly amended Attorney at Law Act, it is difficult to predict specifically how the details of ACP will be interpreted. Nevertheless, the Anglo‑American interpretive approaches referenced in the amendment suggest that ACP may extend to communications with in-house counsel regarding legal advice. Therefore, companies should prepare internal guidelines covering the content and methods of such communications.
 

(5)

In practice, a number of issues will require further clarification, including: (i) the scope of communications protected by ACP; (ii) the scope of “counsel‑prepared documents” that may be withheld; and (iii) the authority, timing, and procedure for determining exceptions under Article 26‑2(3) of the amendment. These questions will likely be resolved over time through future interpretations or guidelines issued by the relevant authorities. Accordingly, it will be essential to monitor legislative developments and official interpretive guidance closely.