[Exclusive] Bar Association Petitions Supreme Court for Revival of Criminal Case Success Fees: "Only Drives Up Retainer Fees"

Success Fees Banned for a Decade
Recent Ruling Recognizes Their Validity
Seoul Bar Association Prepares Petition for Precedent Change
"Blocking Success Fees Based on Outcomes
Has Driven Up Initial Retainers
Raising Barriers for Ci

In an effort to revive “success fees in criminal cases,” which have been banned for over a decade, the Seoul Bar Association—the largest regional bar association in Korea—has launched a collective petition. The association plans to submit a petition to the Supreme Court urging a change in precedent regarding a recent lower court decision that recognized the validity of success fees, overturning existing Supreme Court case law. The legal community argues that a blanket ban on success fees has instead led to higher initial retainers, thereby increasing the financial burden on legal service consumers.

Supreme Court, Seocho-gu, Seoul. Yonhap News Agency

According to the legal community on March 10, the Seoul Bar Association began collecting signatures from its member lawyers for a “petition to change the precedent on the invalidity of success fees in criminal cases” starting February 25. As of the previous day, around 300 lawyers had participated. The association plans to conduct the first round of in-person signature collection through the end of March and is considering extending the submission period into April if necessary. The petition will be submitted to the appellate panel of the Supreme Court handling the case that recognized the validity of a criminal success fee agreement.

Success fees in criminal cases have been virtually prohibited since a 2015 en banc Supreme Court decision ruled them “contrary to good morals and social order,” thus invalid. However, in January of this year, the Seoul Central District Court’s Civil Appeals Division 1-3 (Chief Judge Choi Seongsu) found it unreasonable to categorically invalidate all success fees in criminal cases, recognizing their limited validity in a contractual dispute. As this challenged the Supreme Court’s logic of blanket prohibition, the debate has reignited.

The Seoul Bar Association has cited the “restoration of the principle of private autonomy” and the “guarantee of the public’s right to legal assistance” as the core justifications for its petition. The association argues that the Supreme Court’s blanket invalidation of criminal success fees has led to significant adverse effects in practice. In the past, even clients with limited financial means could retain a lawyer with a small initial retainer and pay a success fee based on the outcome. However, with success fee agreements prohibited, retainers have become uniformly higher regardless of case results, raising the barrier for average citizens without substantial funds to obtain private legal representation.

There are also concerns within the legal sector that a categorical ban restricts the public’s freedom of choice. Choi Seungjae, a law professor at Sejong University, stated, “Once someone is indicted in a criminal case, it often becomes difficult to raise funds immediately. If even deferred payment agreements are prohibited, individuals may be unable to hire private counsel at all. The primary purpose of criminal defense is to prevent wrongful convictions, so I question whether it is appropriate for all such agreements based on private autonomy to be rendered invalid.”

However, some worry that reinstating criminal success fees could be seen as an attempt by lawyers to protect their own earnings. There are concerns that perceptions such as “money can reduce sentences” or the revival of preferential treatment for former judges and prosecutors could again take hold. The Supreme Court, in its decision a decade ago, also stated, “Tying the outcome of investigations or trials to monetary compensation significantly undermines trust in the judicial system.”

In response, the legal industry argues that whether it is initial retainers or success fees, the real issue is the total amount of legal fees. They claim that the current structure, which is focused on guaranteed upfront retainers, could be less favorable for lawyers than a success fee system where payment is contingent on the result and can sometimes be zero. They also counter that former judges and prosecutors already receive de facto success fees through consulting fees and other indirect means, so a blanket ban lacks real effectiveness.

As the Supreme Court’s decade-old rationale of maintaining judicial order clashes with collective action from the legal community seeking to address a distorted fee market, all eyes are on what decision the Supreme Court will ultimately make.

This content was produced with the assistance of AI translation services.