'Complex Criminal Cases': Law Firms Poised for a Boom [Criminal Justice System Overhaul, Part 2]

[Financial News] The overhaul of the criminal justice system, centered on abolishing the SPO and separating investigations from indictments, is expected to create new demand in law firms' criminal-defense market. As investigations and indictments are separated from a process previously handled by a single institution, case parties and lawyers will have to deal with more agencies and procedures.
According to reporting by Financial News on the 27th, legal circles expect stage-by-stage legal responses to become increasingly important in corporate and economic crime cases involving searches and seizures, digital forensics, and interviews with numerous witnesses. This will apply from the early stages of an investigation until a decision is made on whether to bring charges.
Under the amended Criminal Procedure Act, which takes effect on the second of next month, a Public Prosecution Office prosecutor may ask a judicial police officer to conduct a supplemental investigation to determine whether to indict a referred case, maintain the prosecution, or seek a warrant. If the police determine not to refer a case and that decision is deemed unlawful or improper, the prosecutor may also request a reinvestigation. A new procedure has also been established allowing parties involved in a case to raise objections if no substantive investigation has been conducted for six months or more after the investigation began, or if their rights were violated during the process.

The concept drawing the most attention in the law firm industry is the so-called 'two-stage defense.'
At the investigative agency stage, lawyers must persuade the police or the Serious Crime Investigation Agency regarding the alleged facts and applicable legal principles. After a case is referred, however, they must once again argue before Public Prosecution Office prosecutors over the need to bring charges, the sufficiency of the evidence, and the necessity of a supplemental investigation.
A partner at a major law firm's criminal-defense team emphasized, "Previously, lawyers often presented their views on the facts, legal principles, and disposition together during a prosecution investigation. Going forward, they will likely need to present separate arguments to the investigative agencies and the Public Prosecution Office, each with a different objective. The more significant the corporate case, the greater the need to develop separate strategies for each stage, from the beginning of the case through the period after referral." 
Major law firms are already establishing response systems that distinguish between the investigation stages handled by the police and the Serious Crime Investigation Agency and the Public Prosecution Office's decision-making stage on whether to bring charges. A lawyer at another major law firm said, "The records and arguments left during the investigative agency stage can affect the Public Prosecution Office's decision after referral. Therefore, the entire case must be viewed as a single flow, while response strategies for each agency must still be distinguished. We are updating our internal manuals and response systems accordingly."

Another change drawing lawyers' attention is the rise of 'procedural disputes.'
Separate defense issues could emerge over whether materials beyond the scope of a warrant were obtained during a search and seizure, whether the parties' right to participate was properly guaranteed during digital forensics, and whether lawful procedures were followed during questioning.
Corporate criminal cases are particularly likely to generate disputes because the volume of electronic information obtained through searches and seizures is enormous. Disputes also frequently arise over which materials secured by investigative agencies are relevant to the criminal facts specified in the warrant.
A criminal-defense attorney specializing in major law firm cases explained, "Going forward, the key defense issue may not be only whether the criminal allegations are substantiated, but also whether the process used to collect the evidence was lawful. If a procedural defect occurs during the investigation, it can lead to disputes over the admissibility of evidence at later stages involving warrants, indictments, or trial proceedings. This will make early responses increasingly important."
Supplemental investigations and reinvestigations are also being identified as new areas for defense arguments. Parties involved in a case may challenge what matters the Public Prosecution Office prosecutor requested be investigated further and whether the actual supplemental investigation stayed within that scope.
Ultimately, lawyers may have to respond to far more than the investigative agency's assessment of the allegations in a single case. The issues could be divided into searches and seizures, warrants, referral or non-referral, supplemental investigations and reinvestigations, the Public Prosecution Office's decision on whether to bring charges, and trial proceedings.

As procedures become more complex, the law firm industry also expects the criminal-defense market itself to expand.
Some law firms are considering moving away from the existing practice of handling a case under a single retainer, from responding to investigative agencies through the Public Prosecution Office's decision on whether to bring charges. Instead, they are reviewing arrangements that would separate retainers for the investigative agency, Public Prosecution Office, and trial stages.
A managing partner at a major law firm predicted, "If a case becomes prolonged and the agencies requiring a response also change, there may be cases in which it is difficult to handle every stage under a single retainer. Depending on the nature of the case, it may be possible to contract separately for the investigation, Public Prosecution Office, and trial stages." 
In corporate criminal cases involving large-scale searches and seizures or digital-forensics responses that require numerous lawyers, the time and costs devoted to legal work could rise if the matter proceeds to supplemental investigations and reinvestigations.
Although the overhaul of the criminal justice system may strengthen the procedural rights of suspects and defendants, some also warn that it could widen the 'defense-rights gap' based on financial means.
A lawyer formerly with the Legal Research and Training Institute emphasized, "Separating investigations from indictments and strengthening procedural controls at each stage is meaningful in terms of checking abuses of investigative powers. However, as procedures become more complex, the need for professional legal assistance will also grow. The system must be operated in a way that prevents a gap from emerging between those who can afford sufficient legal costs and those who cannot." 
The changes to criminal cases following the abolition of the SPO are expected to go beyond simply determining which agency investigates and which agency brings charges. As new defense issues arise at each point where a case moves between investigative agencies and the Public Prosecution Office, law firms may gain a new market while case parties may face additional legal costs.
[email protected] Yoo Sun-joon Reporter