Court says lawyers can advise clients to keep mum

During investigations, lawyers can tell clients to nix answering

A court has ruled that lawyers have the right to recommend their clients to refuse to give statements to investigators.

Judge Bae Yong-jun of the Seoul Central District Court ruled on Wednesday that the National Intelligence Service (NIS) was wrong to have ordered the removal of a lawyer, identified as Jang, during its interrogation an alleged member of the "Ilsimhoe," allegedly an anti-state organization spying for North Korea. The NIS did so after the lawyer recommended to one of the suspects that he challenge the legitimacy of one line of questioning and refuse to make any further statements.

"Investigative agencies may prevent a suspect’s lawyer from being present only when there is clear and objective reason for concern that the lawyer may hinder the investigation or leak investigatory secrets," wrote Bae in his decision.

"A lawyer may take issue with what he believes to be an illegal or otherwise inappropriate approach to an interrogation, and can then recommend to a client that he refuse to cooperate, as long as that does not conflict with the suspect's clear wishes," he wrote. "If lawyers are limited to passive roles during interrogations, this could very well lead to their presence being little more than a formality."

Mr. Jang was removed from the room after, in the course of the NIS’ interrogation of Jang Min-ho on November 8, he recommended to the man under investigation that he exercise his right to refuse to issue any further statements. In his view, the lawyer said, the questioning was unrelated to the case at hand.

Bae rejected, however, a petition by another lawyer for the Ilsimhoe, identified as Seol, which called upon the court to declare that the NIS was wrong when its investigators prevented Seol from recording, in writing, statements given by his client during NIS interrogation.

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