Herbert Smith Freehills has closed its office in South Korea as the firm prepares to change its Seoul office registration before Brexit. Under the new registration, the firm will be designated as Australia-based.
The six-year-old Seoul office has until now been registered as a foreign legal consultant office of a firm with headquarters in the United Kingdom. Under Korean law, only law firms with headquarters in countries that have a live free trade agreement with Korea are allowed to set up offices in Seoul.
So far, the five U.K. firms, including Herbert Smith Freehills, have been operating their foreign legal consultant offices under Korea’s FTA with the European Union. But as Britain prepares to leave the EU, British firms’ Seoul offices may no longer be covered by the EU-Korea FTA.
It is unclear whether or not the U.K. firms’ Seoul offices will be allowed to continue operation after March 29, when Britain is scheduled to withdraw from the EU. In its response to The Asian Lawyer last week, the Korean Ministry of Justice said it is still reviewing post-Brexit policy regarding foreign law firms.
One option available to the British firms is to re-register their Seoul office’s licence to one from a country that has an FTA with Korea. Herbert Smith Freehills Seoul partner Mike McClure told The Asian Lawyer last week the firm is applying to register as an Australian firm. Australia and Korea have had an effective FTA since 2014.
According to the justice ministry, in order to re-register, the government must first cancel the licence of the current EU FTA-based foreign legal consultant office; the firm must then file a new application for a foreign legal consultant office based on a separate FTA.
The Korean Foreign Legal Consultant Act, the governing regulation for foreign lawyers and foreign law firms in Korea, requires firms to register their Seoul offices under a home jurisdiction where a “principal office” is located and the “highest decisions are made.”
Herbert Smith Freehills’ roots in both Britain and Australia afford the firm the ability to re-apply for a new license. It is unclear whether the rest of the U.K. firms—Allen & Overy, Clifford Chance, Linklaters and Stephenson Harwood—are able to follow suit. The justice ministry said it will determine whether an office is a “principal office” on a case-by-case basis.
Herbert Smith Freehills’ Seoul office has eight lawyers, including office managing partner Dongho Lee and disputes partner McClure, who has been office representative. Once the firm switches to be an Australian firm, McClure will have to be replaced by an Australian-qualified lawyer as office representative. Currently, senior associate Ken Nam is the only Australian-qualified foreign legal consultant based in Seoul.
A Hong Kong-based spokesperson for Herbert Smith Freehills declined to comment on what will happen to the firm’s eight Seoul-based lawyers while the firm waits for the result of its new Seoul office application.