Issues in Labor Disputes in Anticipation of the Enforcement of Article 26-2 of the Attorney-at-Law Act: Reconstructing In-House Counsel Privilege and Internal Investigation Protection through the Lens of Labor-Law Asymmetry

Article 26-2 of the Korean Attorney-at-Law Act, which codifies attorney-client privilege (ACP) for the first time in Korean statutory law, was promulgated on February 19, 2026 (Act No. 21357) and is scheduled to take effect on February 20, 2027. This paper argues that the extension of ACP into labor disputes must be evaluated through the lens of the structural power imbalance that labor law is designed to regulate, rather than through arguments transplanted uncritically from criminal procedure or commercial advisory contexts. Building on the British labor law scholarship that conceptualizes the employment relationship as one of economic dependency and power imbalance, this paper contends that ACP's expansion in the labor context risks deepening, rather than mitigating, the informational asymmetry between employers and individual workers. The paper further argues that the institutional foundations underlying the American Upjohn doctrine (broad discovery under adversarial civil procedure) and the EU Akzo Nobel doctrine (inquisitorial administrative investigation without discovery) differ fundamentally, such that neither model can be transplanted wholesale into Korean law. Three central contributions follow from this framework. First, the paper proposes a two-tier model for internal investigation reports (including workplace harassment investigations), under which the fact-finding portion remains accessible to workers through the Personal Information Protection Act and Labor Relations Commission regulations, while only the legal- opinion portion receives ACP protection. Second, the paper designs a concrete five-stage procedural model for handling ACP objections before the Labor Relations Commission, comprising privilege log submission, preliminary review, in-camera review, partial disclosure and redaction, and protective orders coupled with adverse-inference sanctions for abusive non-disclosure, drawing analogically on existing provisions of the Civil Procedure Act. Third, the paper formalizes the tension between employer ACP claims and workers' reliance on unauthorized recordings as evidence into a three-factor balancing test, treating this asymmetry not as a peripheral concluding remark but as a recurring standard against which the preceding interpretive framework is tested. The paper concludes with legislative proposals to amend the Labor Relations Commission Regulations and to supplement Article 26-2 with evidence-exclusion provisions, cautioning that any such exclusion must be carefully scoped to avoid symmetrically weakening workers' access to unauthorized recording evidence.