In 2021, Lee, once employed by a firm handling IT systems, underwent an internal review due to accusations of accessing confidential email communications. He asked to have his attorney present during the investigation, yet the organization declined. After being terminated as part of disciplinary measures, Lee initiated legal proceedings stating, "Being fired without having legal counsel involved amounts to unjust termination."
The next year, in 2022, Kim, who serves as an assistant professor at a private institution, faced referral to a faculty disciplinary panel due to claims of sexual harassment directed toward a graduate student. Kim attempted to join the hearing alongside his attorney to defend himself, yet the educational organization refused this invitation. Following his termination, he initiated a legal action asserting, "I had my right to legal support infringed upon." Both initial and subsequent court rulings supported the opposing side, noting, "Even without the involvement of a lawyer, the disciplinary procedure did not constitute a flaw."
In May, the Supreme Court sent both cases to its entire panel and has been discussing them for two months. Law experts expect the Supreme Court to set the initial guidelines concerning the right to legal representation in private sector disciplinary processes.
◇ Rising Need for "Legal Representation" in Company Discipline Inquiries
Legal support during disciplinary actions is already established within public institutions like the military and governmental bodies via legislation and rulings from the Supreme Court. During his time as a prosecutor in 2013 handling the 'National Intelligence Service Election Interference Case,' former President Yoon Suk-yeol gained notice for appointing Nam Ki-chun, who previously served as head prosecutor at the Seoul Western District Prosecutors' Office, as an external defense lawyer for the Ministry of Justice's disciplinary panel meeting.
The current challenge is that seeking legal counsel has become more frequent in disciplinary procedures within private organizations. A labor attorney who focuses on corporate matters stated, "Previously, workers typically handled their own defense during inquiries or disciplinary meetings related to workplace harassment or sexual misconduct. Nowadays, as there are more attorneys accessible and fewer obstacles to getting advice, employees commonly hire legal support right from the start."
With increasing demand for lawyers' presence, businesses refusing such requests have resulted in litigation. Nevertheless, there are currently no clear rules or consistent judicial decisions affirming the entitlement to legal representation during internal disciplinary actions in the private sector, causing inconsistencies among court judgments. In 2007, the Seoul Eastern District Court determined that terminating an employee without permitting a lawyer’s participation in a disciplinary panel was unlawful. Yet, both initial and appellate courts handling ongoing cases being reviewed by the Supreme Court have decided that having a lawyer present is not automatically assured within disciplinary proceedings.
◇ "Consequences of Discipline on Daily Life" versus "Is a Corporation Like a Legal Tribunal?"
A legal professional specializing in employment law said, "The entitlement to legal representation extends beyond criminal cases and corresponds with the fundamental concept of fair treatment outlined in the constitution. Increasingly, there is backing for broadening the protections available during processes that greatly affect people’s jobs and professional standing, like termination or demotion."
They stated, "In recent instances of workplace harassment or sexual misconduct, individuals who have been victimized frequently obtain legal support throughout the investigation process. On the other hand, there is increasing worry regarding whether excluding lawyers from appearing for those under disciplinary scrutiny creates a fair procedural balance."
However, companies fear that acknowledging lawyers' presence as a legal entitlement may lead to excessive judicial interference in internal reviews and disciplinary actions. They claim that continuous external legal participation starting from the investigation phase could extend timelines and raise expenses. Businesses might also have to revise their disciplinary rules and inquiry methods.
A attorney at a prominent law firm stated, "Although the Supreme Court may acknowledge the entitlement to legal counsel, it is probable that they will establish standards centered around whether the absence of legal support resulted in substantial damage to the case, instead of nullifying every disciplinary measure completely."