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Feb 12, 2008

Lawyer Cap Unconstitutional

This article, written by Sean Hayes, appeared in the Korea Times on February 13, 2008


By Sean Hayes

Any numerical limitation on the number of law schools, law students or Korean Judicial Exam passers is unconstitutional under Article 15 of the Korean Constitution.

Most of the world's constitutional democracies don't impose numerical caps on the number of law schools, law students, and bar passers. Korean people are smart enough to realize that these numerical limitations are only tools to protect the livelihood of lawyers, and increasingly lawyers are being perceived by the public as greedy, dispassionate about clients' needs, and unwilling or incapable of handling unique and sophisticated legal matters.

The Korean Bar, therefore, for the good of the nation and legal system should voluntarily give up its insistence on protecting lawyers at the expense of their nation, law, legal system and the Korean people and should insist that colleges of law create real professional graduate law schools with rigorous programs, professors capable of not only lecturing but teaching in the Socratic Method, and schools with faculties that comprise licensed and experienced lawyers.

If the Korean Bar is unwilling, the Constitutional Court, as it has so many times over the past two decades must stand-up for the rights of the people and the nation and declare these caps unconstitutional under Article 15 of the Korean Constitution.

Article 15 of the Constitution guarantees the freedom of occupation. If the clause has any meaning at all, it means that all applicants with good moral character and that are competent to practice law must be allowed to enter the profession.

Any law or regulation that does not focus on moral character and competency, as noted by the deceased Professor and Supreme Court litigator George Ethridge, is simply ``undemocratic and tends to create by law a favored class of professional aristocracy to consist alone of those who have the good luck to be born well off financially, or who have rich friends who will let them have the means to take up these long years of study.''

The Constitutional Court, therefore, as the U.S. Supreme Court did in Schware v. Board of Bar Examiners of New Mexico, should allow the government to ``require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar,'' but must demand that all professional licensing laws and regulations have ``a rational connection with the applicant's fitness or capacity to practice law.''

Thus, the Constitutional Court should declare, the present 1000 lawyer yearly limit unconstitutional, since it has no ``rational connection with the applicant's fitness or capacity to practice law.'' If, for example, in one year 2000 applicants are fit and have the capacity to practice law only 1000 are allowed to pass the examination. This quota has no relation to the individual competency or character of the applicant and is simply a ``gate keeping'' tool to protect this ``professional aristocracy.'' Under the new plan the judicial exam pass cap is increased, and the barrier to entry simple becomes the number of students allowed to enter law school and the number of law schools, thus, the same unconstitutional illogic is espoused.

Hopefully, the Court, for the nation, its institutional integrity, and the sanctity of the Korean Constitution and Korean Constitutional Law will do the obviously correct thing and declare, if the cap on the number of law schools, law students, and judicial exam passers is challenged - unconstitutional.

The Constitutional Court, comprised of a group of justices and researchers that are overwhelmingly licensed lawyers, would be perceived as a true bastion for democracy and the rule of law if it declares, against their own and their colleagues interest these caps unconstitutional.

The determination of the case will be a clear sign of the willingness and ability of the justices of the Court to be isolate themselves from pressure from the Korean Bar, the ordinary judicial system, and their colleagues and will show to the people that the Court is a truly the ``guardian of the constitution.''

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SeanHayes@ipglegal.com