Interview in relation to a comparison of the legal systems in Australia and Korea and an opinion on the issues relating to the reformation of Korean prosecutor's right to investigate and prosecute. SBS KOREAN (News Link)
20 Apr 2021
The police can request to interview a suspect. The suspect must acknowledge in the police interview that it is voluntary and that they understand they have the right to silence. This is because everything said can be used as evidence, and later in court it may be used to the suspect’s detriment. The right to silence cannot be exercised if the police ask for the suspect’s name, address and birth date. If a suspect does not answer the questions for this information it could be grounds for prosecution. To maintain the validity of the evidence from a police investigation, the police must follow proper procedure and not violate the suspect’s rights. If proper protocol is not adhered to, the evidence from the interview may not be used later in court. A suspect has the constitutional right to not have their own words used against them. If a suspect does not want to answer a question, they should reply with “I would like to exercise my right to silence” or “No comment”. Even if the suspect’s case goes to trial, the judge or jury cannot consider the right to silence negatively in their verdict. Legally, it cannot be concluded that the right to silence signifies “the suspect must not want to answer the question to hide the truth” or “the suspect is lying”. The right to silence is a crucial constitutional right to the individual. The police must inform the suspect before conducting an interview that “You have the right to remain silent and anything you say may be used as evidence”. Any confession from a suspect prior to the police having formally given this caution may not be used in court. This is like the Miranda Rights often proclaimed in Hollywood movies, except in Australia, the police do not have to say “You have the right to a lawyer”. Any confession made in the interview must be made voluntarily, otherwise it may not be used in court. The police may not threaten, blackmail, torture or suggest that if the suspect confesses they will be given a lighter sentence or other benefits. There are also other rights to the suspect as a part of this process. The suspect has a right to an interpreter and may not be questioned if drunk, intoxicated by drugs or in pain. If the suspect is a minor, their guardian must be present for a police interview to be done. All this is to protect the rights of the suspect. A suspect’s assumption that cooperating with police by answering all their questions will somehow benefit them is faulty. Consenting to a police interview without having a lawyer present will almost never be of benefit to the suspect. Even if the police say something along the lines of “I would just like to hear your opinion”, their intentions must be questioned since the police are almost definitely seeking to achieve a quick confession from the suspect. Therefore, it is best to contact a lawyer immediately and, in the meantime, to exercise the right to silence.
12 Nov 2020
Legal fees are normally calculated by time spent on the case, which is called the time charge rate. When a lawyer accepts a case, they have a duty to provide an estimate of the legal fees to their client. Failure to do so may lead to cases where legal fees cannot be claimed. However, if the client has already paid the legal fees in advance, the legal fees can be evaluated to determine if they are appropriate, with a portion being returned if required. Normally, people prefer to choose a fixed fee structure over a time charge rate. In a fixed fee structure, the client and lawyer agree upon a fixed fee for the whole legal process. Contrary to the time charge rate, the client has the assurance of not having to pay any further premiums. Furthermore, the lawyers do not have to calculate their time spend on a 6min basis when filing their invoice, and a fixed fee avoids any future conflict over the legal fees exceeding the initial estimate. For these reasons, within legal circles, there is a continued dispute over whether a time charge rate or fixed fee agreement is better. However, a fixed fee agreement is not without its issues. If the client has not fully explained the details of the case from the start, the legal issues change as the case progresses or if the lawyer sets a fixed fee but then continues to add additional charges, the fixed fee agreement would become problematic. For example, in one case study Person A was prosecuted and taken to court. Person A sought the services of a lawyer and agreed on a fixed fee under a contract of $100,000 for the whole legal process until the end of the jury trial. The lawyer, after accepting the case, prepares various kinds of evidence and comments and seeks the services of a barrister. However, due to a lack of evidence, the case does not progress to the jury, and the prosecution side withdraws their case. The lawyer billed Person A $100,000, and Person A reported the lawyer to the law society. What happens in this case? Assuming no exceptional circumstances, the fixed fee agreement may become invalid. This is because the lawyer calculated the fixed fee assuming the case would go to a jury trial, but this did not occur. In such an instance, the fixed fee agreement is not reasonable. As such, the amount should be amended to reflect the actual hours worked on the case. Let us consider a different example. A lawyer has accepted a traffic accident case and has divided the fixed fee agreement into parts for each stage of the process. This is shown below. 1. Preliminary procedure prior to the case - $2,500 2. Compulsory conference with the other side - $3,000 3. Filing a statement of claim - $4,000 4. Submitting documents - $1,000 5. Conciliation - $2,000 6. Hearing and trial - $6,000 Stages 1 and 2 have progressed, and following the conference, the opinion is leaning towards a settlement. The case was eventually settled out of the court. However, the lawyer invoiced the client for the total of the five stages ($12,500), claiming this was correct. The client argued this was extravagant and filed a complaint with the law society. The fixed fee agreement’s partition into parts seems to not pose an issue. However, the lawyer only completed 1, 2 and 5, yet submitted 3 and 4 to be invoiced. Similar to the prior case, the initial invoice becomes invalid and only 1, 2 and 5 should be invoiced, totaling only $7,500. As can be seen, sometimes within a fixed fee agreement the lawyer’s legal fees may not be just or reasonable. The lawyer has a duty to explain the fees for their services to the client, and when things do not go as expected, the lawyer should not always receive the agreed initial payment. People often have the assumption that if they consult another lawyer, the lawyers will side together. Although other countries may differ, in Australia, this is not the case. A lawyer should not for their occupational benefit cover up another lawyer’s faults or even commit wrongdoings themselves since doing so would exacerbate the issues and eventually be uncovered. Only by acting conscientiously can lawyers maintain their professionalism, respect, integrity and trust with clients.
05 Nov 2020
Many lawyers grasp the attention of clients with the phrase ‘No Win No Fee’ and succeed in entering into an engagement contract with their clients. This literally means that lawyers will only receive their fees if they win the assigned case or successfully negotiate a settlement agreement for the client. This is a risk-taking contract for a lawyer because they won’t bill in case of a loss. These kinds of contracts are unavailable in criminal and family cases. Usually only cases in which it is possible for both sides to reach a settlement agreement go through the process of a No Win No Fee contract. Law firms which specialise in traffic accidents generally offer these forms of contracts. The No Win No Fee contract could be one way of hiring a lawyer for people who aren’t financially stable as they would not have to make a large payment at once. But there is something we should keep in mind. Generally, expenses incurred for the cases are not covered by lawyers’ fees under the aforementioned contracts. Expenses refer to the amount of money the lawyer has spent in relation to the case. For example, court fees, barrister fees, expert fees, etc would be included in expenses. All No Win No Fee contracts are required to specify whether these kinds of expenses are included in the contract or not. Furthermore, another thing to bear in mind is that No Win No Fee contracts do not cover fees for the other side’s lawyers. In other words, it is possible that losing parties would bear the other side’s lawyer fees if their case is not successful. Even if you have a No Win No Fee contract, this does not mean that you are fully exempted from being responsible for fees of the other side’s lawyer. Clients often mistakenly think that they are not required to pay any fee if their case is not successful. In the case of a No Win No Fee contract, the following clauses must be mentioned: 1. What circumstances will be considered a ‘win’ of the case? ● For example, consider the following outcomes: a party withdraws its claim, a court partially recognises a claim or a case is settled through arbitration or settlement. 2. Regardless of the win or loss of the case, what expenses are necessary? 3. Will there be an uplift fee? If there is, how much would it be? ● An uplift fee refers to the payment lawyers can receive in addition in case of a win. Since the lawyer had to bear risks during the case, they are able to bill payments in addition to the original fees. However, this uplift fee cannot exceed 25% of the original fees, and the contract must stipulate how much can be charged. 4. The contract must be written with full text, and the client has to personally sign. 5. Before signing the contract, clients should be able to get advice from other lawyers. 6. It has to be mentioned that the contract can be terminated in five days. In cases such as a traffic accident, the 50/50 Rule applies. The 50/50 Rule states that lawyers cannot charge more than 50% of the monies remaining from any settlement amount after deduction of all expenses incurred. For example, if $50,000 has been received from settlement agreement fees, after deducting $1,000 in Medicare fees, $6,000 in Centrelink fees and $9,000 in other fees including an expert opinion, the maximum the lawyer can bill is $17,000. There are lawyers who apply the 50/50 Rule before expenses and ask for 50% of the settlement amount, but this kind of action is illegal. Another point to consider while carrying out a No Win No Fee contract is that if the lawyer gets replaced during the process, the replaced lawyer can bill the amount that has been spent. The following are the factors you must go over before signing a contract. 1. Read and understand the contract thoroughly. If there is anything you don’t understand, you should ask the lawyer about it. 2. Carefully review the terms and conditions for 5 days. If anything is unclear, get advice from a different lawyer. 3. If you do not completely understand the No Win No Fee contract and its conditions, this too requires advice from a different lawyer. 4. Know the specific incidental expenses and the expenditure, and whether the lawyer has an uplift fee and if they do, the amount of the uplift fee. Due to these incidental expenses and uplift fees, there might not be much money left in your hands even after winning the case. 5. Confirm the total estimated payment fees. Even if it is a No Win No Fee, the lawyer has a duty to rationally calculate the amount of time spent and inform the client. 6. Remember that the 50/50 Rule applies to a personal injury case. 7. Even if it is a No Win No Fee contract, remember that you might be in charge of fees of the other side’s lawyer after a loss, and if a lawyer is replaced during the process the previous lawyer might also bill you according to the time spent on the case until then. In conclusion, do not hastily sign a No Win No Fee contract without consideration. If these forms of contracts or the terms and conditions confuse you, we recommend receiving advice from the Bar Association or a different lawyer.
06 Oct 2020
John (Heanu) Kahn, Partner and Principal Lawyer of the Criminal practice, has been recently invited to MBC’s Live Morning Today to share a notable Australian criminal case involving minors in light of the recent controversies surrounding Korea’s juvenile law. In an atrocious murder case committed by six males back in 2016, two of the attackers were found to be under the age of 14, ages that would have made them minors and avoid criminal responsibility under the Korean juvenile law. The two attackers who were 14 and 11 years old have been sentenced to 4 years and 6 months and 4 years imprisonment respectively. Both of their appeals have been rejected. This case illustrated just how minors in Australia could face harsh criminal prosecution depending on the severity/gravity of the crimes they committed.
07 Jan 2020
Thursday, 13 June 2019 – Rise of the boutique law firm Doing business with international partners – whether it be an entity operating on Australian soil or a local brand venturing offshore – can be fraught with difficulty. Between establishing a fresh customer base, navigating new laws, regulations and corporate governance, creating effective relationships and becoming nuanced with cultural mores (perhaps the trickiest of all), the business of doing business has the potential to bring an enterprise undone. For instance, exchanging a business card using one hand rather than two can be seen as a sign of disrespect in some cultures. Who would necessarily know? With Australians increasingly undertaking business across the world and with Asian powerhouses such as Japan, Korea and China, navigating the behind-the-scenes landscape, as well as providing direct services and advice, has become all important. Business owners and operators need to focus on what they do best, so employing people who specialise in troubleshooting make-or-break sensitive legal, technical and cultural matters is a vital and strategic move. Sydney’s H & H Lawyers offers this official and unofficial role in its capacity as a firm on the path to being Australia’s biggest ‘‘Asian’’ law firm. H & H Lawyers’ services include commercial and corporate advisory, acquisitions, dispute resolution, employment law, corporate migration and intellectual property. “Our bilingual lawyers have been inundated with work representing multinational corporations and government agencies from Japan, Korea and China that want to expand their businesses into Australia,” says Principal Ken Hong. “We have also been very busy acting for local clients with Japanese, Korean or Chinese backgrounds, or that have transactions with their counterparts in those three countries. “Demand for our services has escalated, so we are rapidly expanding to meet the demand.’’ Fellow Principal Yukio Hayashi says a vital aspect of the firm’s work includes “bridging fundamental cultural differences”. “This cross-cultural dexterity is not necessarily part of our brief, but it’s what we offer as well, as it is so essential,’’ he says. “Our team not only speaks the languages, but also intimately understands the cultural nuances of Asia. This saves our clients so much time in getting straight to the actual issues and resolutions. Without the right knowledge of culture, a lot of key messages can be lost in translation, particularly legal concepts, leading to a frustrating experience for all. “We had one situation recently in which there was an investment in an Australian business by a Japanese company. There were excellent managers and staff in situ, but the incoming management from Japan had their way of doing things that did not rest well with the Australian team, and vice versa.” “This friction was no one’s fault, but we made it our job to navigate the cultural minefield. We were able to get each side to see things from the other’s perspective and that made all the difference.” Hong and Hayashi say that by going this extra mile, the law firm can resolve difficulties and help international-facing businesses to thrive. “The importance of Australia’s trade relationships with Korea, China and Japan need no further explanation,’’ says Hong. “They are our top three trading partners. We look forward to continuing with our work and contributing to Australia’s successful trade relationships with those three countries.” Says Hayashi: “Our firm is well placed and equipped to help clients have a more fruitful, efficient and enjoyable experience in doing business.’’
13 Jun 2019