'No reason to stay': Judges leave high courts for major law firms
Published: 18 Mar. 2024, 15:49
Updated: 18 Mar. 2024, 19:38
- KIM JI-YE
- kim.jiye@joongang.co.kr
The number of seasoned judges leaving their high court positions is increasing as many opt to move to major law firms in Korea, raising concerns over possible conflicts of interest and the need to reform the judiciary's management of personnel.
Even judges at high courts with at least 15 years of experience in appellate trials are leaving their posts.
The JoongAng Ilbo, an affiliate of the Korea JoongAng Daily, analyzed 71 high court judge resignees over seven years from 2018 to Feb. 15.
According to the analysis, the resignees spent an average of 4.15 years serving in the high court system before leaving their post. Six only spent one year in a high court post and 12 left their position after two years.
The number of high court judge resignations increased after Kim Myeong-su was appointed chief justice of the Supreme Court in September 2017. In previous years, only one or two judges resigned annually.
In 2018, eight judges left and one judge left in 2019.
The number of resignations surged to 11 in 2020, followed by nine in 2021, 13 in 2022 and 15 last year.
A total of 14 judges resigned this year prior to the regular round of personnel appointments on Feb. 19, right after current Supreme Court Chief Justice Cho Hee-dae was appointed in December 2023.
Among the total resignees, about 70 percent headed straight to major Korean law firms, according to JoongAng Ilbo's data.
The others opened their own law firm or became a professor at a law school.
"It's like they are becoming high court judges to later go to large law firms," a judge told the JoongAng Ilbo on condition of anonymity. "I heard that many people apply for a high court position for this reason."
Ruling on future employers
The post-resignation careers of some judges raise questions as to whether they were impartial in some trials.
Of the 14 judges slated to resign this year, 10 are from the Seoul High Court. Five are heading to work at major law firms.
The JoongAng Ilbo's investigation found that all five had cases on their dockets between Dec. 7 and Feb. 7 where the law firm that they had signed with represented the defendant.
In an employment dispute case that was decided on Dec. 21, one of the judges ruled in favor of a company represented by a law firm where he had already signed an employment contract.
The same judge also ruled on three more cases where his future law firm represented the defendants, and will likely determine three pending cases.
Another judge who was due to work at the same law firm also oversaw two cases where the firm represented one of the litigants.
One of the five judges due to leave the Seoul High Court this year was found to have ruled on six cases involving his future employer, according to the JoongAng Ilbo investigation.
A former high court judge who now works as a lawyer said on condition of anonymity that "it used to be customary that a judge would delay ruling on a case as long as possible and leave it to their successor if one of the legal teams working on the case is from a firm where they are negotiating an employment contract."
The former judge also said it is "unusual" for a judge to issue a ruling in a case that involves their future employer as it could "create a conflict of interest."
Lengthy negotiations between big law firms and high court judges often take months before the annual round of court appointments is announced in February, creating situations where a judge is able to simultaneously engage in contract negotiations with law firms while overseeing hearings and issuing rulings.
Observers noted that it is easily possible for judges who intend to move into the private sector to face conflicts of interest, given that a judge often applies to several prominent law firms at once and the fact that one out of three cases sent to appellate courts involves a large firm.
According to a lawyer from a big firm, judges "previously resigned before searching for private sector jobs," but that now, "they reach out to law firms secretively over the summer, then sign their contracts at the end of the year."
The lawyer added that a "considerable number" of judges who didn't register prior to the latest round of judicial appointments "have already reached out and talked to law firms."
Recent judicial reforms have also served to unshackle high-ranking judges from restrictions on their post-resignation careers.
The Public Service Ethics Act stipulates that a presiding judge — a high court judge promoted to a senior rank by a chief justice — must wait three years before moving to a big law firm after serving as a presiding judge on a high court.
The presiding judge system was long criticized by judges who argued that it allowed the president, who nominates the chief justice, to extend their influence into the judiciary.
But the abolition of the presiding judge system in February 2021 not only erased a status marker that made some senior judges more desirable hires, but also unshackled all limitations on their post-judiciary employment.
One judge noted that court clerks are excluded from pre-trial research in cases where their future employers serve as legal counsel, which he said was "ironic."
"Effectively, there are still guidelines to prevent conflict of interest among clerks, but not the judge who hands down the sentence," he noted.
Another judge who works at the Finance and Economy District Court said high courts have become a "free-for-all" recruitment grounds for law firms after the abolition of the presiding judge system, adding that "it is time for discussions on implementing restrictions."
Failure of the personnel system
Though many say that such departures violate "public service ethics," some say that it's the failure of the personnel system.
Previously, district court presiding judges and high courts judges had to rotate their positions. This allowed movement between court levels.
The dual system first implemented in 2011 states that once judges are appointed to a court, they cannot transfer to a different level. This restricts a judge's career as the workload differs between courts. District courts address various trial departments, while high courts only deal with heavy cases like civil, criminal and administrative cases.
In 2021, former Supreme Court Chief Justice Kim abolished the high court's presiding judge system to dismantle the position's privilege.
This made advancement to higher courts more difficult, thus motivating judges to seek better opportunities elsewhere.
"One of the reasons why judges stayed was to gain a promotion within the system, but now there is no incentive," a former presiding judge told the JoongAng Ilbo.
"Ironically Kim, who was known to be politically progressive, boosted the trend of judges going to large law firms," said a district court's presiding judge who asked for anonymity. "By going to a law firm, the former judges can increase their annual salary by at least four to five times."
The Supreme Court is taking action to counteract the situation.
Chun Dae-yup, head of the Office of Court Administration, said that "it will fill in the empty provincial high court positions by rotating judges between the provinces."
Under the existing system, many high court judges resign in their fourth year, a year before they are assigned to a provincial court.
Currently, high court judges based in the capital region are assigned to provincial-capital rotation duty after their fifth year. The rotation lasts for three years.
Supreme Court Chief Justice Cho also added a rule for appointing this year's high court judges.
This year, the appointment prioritizes those who have worked at least three years as presiding judges at a district court. Previously, only newly appointed district court presiding judges were up for consideration.
"We considered that judges leave quicker due to an early appointment," a Supreme Court insider said. "We plan to now select those with enough experience at a district court."
However, some say such measures will only act as a temporary bandage for the situation.
"The system will leave the remaining high court judges with little room to maneuver as more experienced judges join their ranks," said a former high court judge who now works as a lawyer. "This will accelerate the departure of judges."
Some say creating opportunities for promotion and increasing judges' compensation should be considered first to prevent essential personnel from moving out.
"It is necessary to build a judiciary that integrates the appeals department of each district court with a high court equivalent, or to increase performance-based incentives," said a judge.
BY YOON JI-WON, YANG SU-MIN, OH SAM-GWON [kim.jiye@joongang.co.kr]
with the Korea JoongAng Daily
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