[Contribution] Is the disciplinary right of the Bar Association under the name of ‘self-regulation’ okay as is?

The Korean Bar Association is an autonomous organization that protects legal ethics and an organization that represents the self-purification function of all lawyers. However, society is now asking the direction of the point of the sword, whether the sword of disciplinary authority given for its original purpose of ‘midnight’ is truly aimed at the public interest or whether it has degenerated into a means of control for the benefit of a specific group.

According to Article 91 of the current Attorney Act, the Bar Association autonomously carries out the entire process from request for disciplinary action to review and decision, and the level of sanctions ranges from reprimand to permanent expulsion. Although formally notified to the Minister of Justice, institutional concerns are raised in that the actual authority is concentrated in the Bar Association, a private professional organization.

Compared to other professions, the Bar Association's exclusive disciplinary authority is an unusual structure that runs counter to the principle of public responsibility. Doctors are subject to disciplinary action by the Doctors Disciplinary Committee under the Ministry of Health and Welfare, while accountants and tax accountants are subject to disciplinary action by administrative agencies such as the Financial Services Commission and the National Tax Service, respectively. In particular, it is subject to a contradictory structure in which private organizations themselves decide on the existence or non-existence of public qualifications, only lawyers, and this has a logical flaw that undermines the general principle of the rule of law that ‘control over qualifications must be exercised by public power.’

The problem is that these structural concerns are not just theoretical. The Korean Bar Association is a political organization led by a directly elected president, and there is an inherent risk that disciplinary power could be used as a means to suppress specific groups or differing opinions. In fact, the Bar Association actively exercised or announced disciplinary authority in some cases, revealing the absence of an internal control mechanism.

The symbolic event in which this structural risk became a reality is the ‘Rotalk incident’. Based on its internal rules, the Korean Bar Association effectively forced a choice by imposing a fine of up to 3 million won on lawyers who use legal platforms. Although this was interpreted as a violation of internal regulations, the media and civil society evaluated it as an abuse of disciplinary power beyond the scope of self-regulation and as an act of disrupting market order for legitimate advertising and service competition.

This issue is not just a criticism within the legal community. This has already emerged as an important social agenda, with President Lee Jae-myung's pledge to establish an independent lawyer disciplinary body. Disciplinary action against lawyers is not simply a matter within the profession, but a public issue closely linked to constitutional values ​​such as freedom of expression, freedom to practice one's profession, and the public's right to know. Therefore, the improvement of the disciplinary structure must go beyond the level of internal control of the department and be approached as an issue of constitutional legitimacy and democratic responsibility surrounding public qualifications.

Therefore, the current structure poses three fatal risks as follows.

① Private organizations actually decide whether to deprive themselves of public qualifications,

② The judgment criteria are based on abstract concepts such as ‘maintaining dignity’,

③ Procedural transparency and external checks are insufficient.

This leads to the double risk of arbitrary abuse of disciplinary authority and politicization of the organization.

Now is the time to calmly seek institutional reform of the lawyer disciplinary system. It is necessary to disperse some of the disciplinary authority to independent external organizations or administrative agencies, have external personnel participate in the disciplinary committee, and comprehensive provisions such as ‘maintaining dignity’ be more clearly defined by law. Clarity, predictability, and compliance with the principle of proportionality in disciplinary grounds and procedures are of paramount importance.

Developed countries under the rule of law have already provided a clear answer to this. In the UK, the Legal Services Regulatory Agency (SRA) and the Bar Standards Board (BSB) are responsible for disciplinary action, and are clearly separated from the Bar Association. In the United States, the Supreme Court of each state also has disciplinary authority, and audits are conducted through independent investigative organizations. The American Bar Association (ABA) is only responsible for establishing codes of ethics and does not intervene in disciplinary action. This is the minimum institutional device to balance autonomy and fairness.

Self-regulation is an important mechanism for local organizations to maintain trust in a democratic society. However, the premise is fairness, transparency, and checks and responsibilities on authority. If a functional organization monopolizes the life and death rights of public officials and exercises that power arbitrarily, we end up tolerating “monitors who are not monitored” in the name of the law. If the Bar Association wants to be recognized as the authority of true autonomy, it must quickly step down from its position as a ‘monitor’ and show the decision to accept external checks.

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[Contribution] Is the Bar Association's disciplinary authority called ‘self-regulation’ okay as is? (Shortcut)