[Daniel Fiedler] Absurdity of law student quotas

Recently law professors in South Korea were asked their opinion on the latest version of the Korean bar exam, the test the new law school graduates must pass to become lawyers. Yet nowhere in the questionnaire was there opportunity to address the biggest issue, that of the quota system. Despite repeated attempts to open up the legal market in South Korea, the current members of the Korean bar have managed to retain a quota of around 1,500 new lawyers per year for the foreseeable future. This absurdly low quota is maintained by Korean lawyers purely to preserve their ability to reap large fees from desperate clients.

The true magnitude of the impact of this strict quota becomes clear when comparing the number of current practicing lawyers in South Korea to that of the United States. In South Korea, a country of 48.5 million people, there are around 10,000 practicing members of the Korean Bar Association. By comparison the U.S., with a population of over 300 million, there are approximately 1.2 million practicing lawyers. This means there is one lawyer for every 4,850 persons in South Korea. In the U.S. there is one lawyer for every 250 persons.

While Korean lawyers sometimes argue that the existence of independent paralegals in South Korea offsets this differential, it does not. Paralegals also exist in the U.S. and perform many of the same tasks as Korean paralegals. The only real difference is that paralegals in the U.S. must work under the direction of a lawyer whereas in South Korea they work independently but are, as in the U.S., barred from representing clients in court.

Since there are so few lawyers in South Korea, most Korean lawyers engage in a general practice where they represent clients in areas as diverse as criminal law, divorce, tax and corporate issues. This lack of specialization results in a low level of expertise in every area of the law. In the United States and Europe lawyers are numerous and competition is fierce. This competition produces highly specialized and highly competent lawyers who, after the ratification of the Korea-EU and the KORUS Free Trade Agreements, will be coming to South Korea. These lawyers work at large international law firms, are fully fluent in the Korean language, are knowledgeable about Korean law and are trained in international standards of case management and representation. While these lawyers and their law firms currently represent some of South Korea’s largest multinational corporations they are forced to do so through offices in Hong Kong, Beijing or Tokyo and generally work on one deal at a time. The free trade agreements, in combination with the Foreign Legal Consultant Act of 2009, will allow these large international law firms to open permanent offices in South Korea giving them the ability to provide fulltime service to their current Korean clientele and to expand further into the Korean market.

Thus, future law school graduates of South Korea will be forced to compete with lawyers from top tier law schools in the United States and Europe backed by the vast resources of their international law firms. It will not be a fair contest and, to a great extent, the fault lies with the current quota system in South Korea. The myopic focus on restricting the number of attorneys maintains, for now, the ability of every Korean lawyer to earn excessive fees for relatively simple court processes. However, this narrow focus will eventually cause Korean lawyers unable to gain affiliation with a major international law firm to spend their time pursuing ever more simplistic legal matters for ever reducing fees. Therefore, instead of waiting for the international law firms to step in and provide top notch services, South Korea needs to start producing more lawyers now. The only way to compete is for there to be a sufficient number of Korean lawyers for specialization to occur.

The production of a greater number of lawyers should have begun three years ago with the opening of the post graduate law schools. Unfortunately, and primarily due to the efforts of the members of the Korean bar, the law schools were restricted to a mere 2,000 students per year. That delay may have irretrievably damaged the future ability of Korean lawyers to compete. However, despite these mistakes of the past, the quota system should be immediately scrapped and the bar exam for law school graduates should be structured so that any graduate who demonstrates sufficient knowledge and ability in the law can pass.

Second, the law schools should be allowed to admit as many students as demonstrate the required level of logical and analytical ability on the law school admission test. Currently each school is limited to a strict quota system that seems to be designed primarily to maintain the supremacy of the SKY universities. The law school system in South Korea may be based on the American model but it has been limited in a way that almost certainly guarantees failure. Solely in the interest of protecting their position and livelihoods the lawyers of Korea are creating a misbegotten legacy that will allow the international law firms of Europe and the United States to take over the practice of sophisticated law in South Korea.

Specialization is what changed the agriculture-intensive past into the technology laden twenty-first century. Once every family built their own house, grew their own food and made their own personal property. Over time improvements in agriculture resulted in the growth of cities and an increase in free time allowing individuals to learn specialized trades. Now individuals spend their childhood and young adulthood engaged in education in order to obtain the necessary skills for one chosen field. In medicine no doctor claims to be able to treat all diseases and a visit to a family doctor for anything more than a minor ailment quickly results in a referral to a specialist. And yet lawyers in South Korea are still engaging in general practice, attempting to work in multiple unrelated areas of law, unable to refer difficult cases to non-existent specialists and committing malpractice regularly. This ongoing legal crisis that is the result of the absurdly small yearly quota for new lawyers will only worsen until the quota system is ended.

By Daniel Fiedler

Daniel Fiedler is a professor of law at Wonkwang University since 2007 and is the lawyer representative for international marriages in Namwon City since 2010. ― Ed.