Are foreign lawyers a problem?<\/p>\n
By Donna K. Woodward<\/p>\n
MEDAN (JP): In the April 13 issue of The Jakarta Post,
\nattorney Kartini Muljadi presented clearly the rationale for the
\nposition taken by Indonesian lawyers' groups on the employment of
\nforeign lawyers in Indonesia.<\/p>\n
As Kartini and T. Mulya Lubis in his April 18 article
\ncorrectly pointed out, other countries have similar restrictions
\non the employment of foreign attorneys within their borders. The
\nbar associations of the U.S. certainly maintain tight controls on
\nforeign lawyers.<\/p>\n
Kartini refers to those who attempt to circumvent the
\nrestrictions by working as "business consultants with an
\nIndonesian company operating under the foreign capital investment
\nlaw." This reference might have been prompted by the recent
\ndetention of two American attorneys who were alleged to have
\npracticed law here without the proper work permits.<\/p>\n
As someone who is licensed to practice law in the U.S. but who
\nis authorized to work in Indonesia in the field of management
\nconsulting, may I address a gray area.<\/p>\n
Many attorneys in the U.S. do not practice law as such, but
\nwork as business consultants in a broad range of ventures. Thus
\ninstead of practicing law in New York, where I am licensed to
\npractice, I might decide to work as a business consultant in
\nCalifornia, where I am not licensed to practice law.<\/p>\n
Like Kartini or Mulya, I would be prohibited from giving
\nadvice on California law or representing a client in court in
\nCalifornia, because in the eyes of the state of California I too
\nam a "foreign" lawyer. But I may legitimately work as a business
\nconsultant in California even though I am not licensed to
\npractice law there.<\/p>\n
The specific substantive expertise of lawyers lies in
\nunderstanding and interpreting law, researching the law, applying
\nlaws -- and of course arguing the law. But lawyers are also
\ntrained in fact-gathering, questioning, analysis and document
\ndrafting skills that are of value to business.<\/p>\n
These generic skills are not the exclusive property of
\nlawyers. Political scientists, economists, researchers and
\nbusiness consultants all need to be adept at collecting,
\nevaluating and presenting data persuasively on behalf of clients.
\nBut because the practical training of lawyers emphasizes these
\nskills, lawyers are often in demand as consultants.<\/p>\n
Consultants, whether Indonesian or foreign, capitalize on
\nthose factors in their academic and professional backgrounds
\nwhich enhance their appeal to clients. A consultant who is also
\nan attorney would be likely to refer to that legal training when
\nmeeting clients because it supports a consultant's credibility.
\nA legitimate consultant will also make clear that he or she is
\nnot authorized to practice law here.<\/p>\n
The gray area: If foreigners have work permits authorizing
\nthem to work here as consultants, but also happen to be
\nattorneys, when and how do the consultants cross the line into
\nthe forbidden land of practicing law?<\/p>\n
What activities constitute "the practice of law" in Indonesia?
\nGuidelines need to be more transparent and perhaps more defined,
\nif they are to protect the interests of Indonesian lawyers, of
\nthe local clients who engage foreign consultants, and of those
\nforeign consultants who try to do the right thing. Kartini also
\nreferred to practices which "violate the spirit and letter of the
\nprevailing rules".<\/p>\n
Unfortunately, here it is sometimes easy to avoid compliance
\nwith the spirit of the law, because officials themselves rely so
\nheavily on the letter of the law when enforcing compliance. The
\ntendency to interpret regulations and laws so legalistically
\ninvites abuse, by dissembling foreigners and disingenuous
\nofficials alike.<\/p>\n
Law, like economics, is becoming transnational. As Mulya
\npointed out, because of innovations in communication through the
\nuse of electronic mail systems, "net" meetings and others, it
\nwill soon be hard to say just "where" a lawyer is practicing law,
\nor to control the encroachment of foreign attorneys into a
\ncountry's legal or business environment.<\/p>\n
If a California-licensed attorney is sitting in Singapore,
\nchecking the latest relevant court decisions with his\/her New
\nYork or London office via the Internet, and formulating advice to
\nbe e-mailed to a Jakarta-based client, where is the lawyer
\n"practicing" law?<\/p>\n
As we say in New York, "An educated consumer is our best
\ncustomer." For anyone, Indonesian or otherwise, to seek advice on
\nlocal legal matters from a foreign attorney who is not educated
\nin local law, could be legal suicide. A strategy for Indonesian
\nlawyers against foreign interlopers might be to emphasize not
\njust your exclusive rights regarding the practice of law, but to
\nemphasize your exclusive expertise in Indonesian legal matters.<\/p>\n
The problem is larger than that of foreign lawyers engaged in
\nthe unauthorized practice of law. Show me a failing mega-project
\nin North Sumatra and I will show you ill-qualified expats who
\nwere employed without work permits. Not only Indonesian lawyers,
\nbut Indonesian English teachers, managers, and other
\nprofessionals are also disadvantaged: passed over in favor of
\nrelatively cheap foreigners who work in Indonesia without the
\nproper credentials and permits.<\/p>\n
These other professionals, though, do not have the visibility
\nand strong lobbying power of lawyers' groups. Self-styled foreign
\n"consultants," managers, English teachers (English teachers are
\nthe most ubiquitous undocumented workers, at least in Medan)
\noften are employed quite openly without benefit of a work permit.<\/p>\n
Doesn't this give an unfair business advantage to those who
\navoid the US$1,200 per person\/per year tax? While some employers
\nwho have gone to great lengths and expense to obtain work permits
\nare victimized by greedy immigration officials because of
\ninnocent mistakes in documents, other foreigners work openly for
\nyears without obtaining the proper sponsorship and permits.<\/p>\n
What could account for such selective enforcement of the
\nimmigration law?<\/p>\n
Some employers would like to comply with the law, but
\neventually ignore Indonesia's visa and work-permit regulations
\nbecause the rules are so obscure, or because the bureaucracy is
\nso slow, or because some local officials and agents demand such
\nexorbitant unofficial fees, or because it is finally easier and
\ncheaper to pay off a lower-level immigration inspector than to go
\nthrough proper channels. Unofficial fees and payoffs are tired
\nold news. Are there any new solutions?<\/p>\n
Mulya suggests a way to resolve the controversy over foreign
\nattorneys: a dialog. Can there be any dialog about abuse of work
\npermits by foreign attorneys without addressing the issue of
\nbureaucratic corruption?<\/p>\n
And can Indonesian attorneys address the problem of corruption
\nwithout addressing the problem of the substandard salaries of
\nmost civil servants?<\/p>\n
Can the problem of public salaries be addressed without
\nlooking at the tax structure? And can corporate taxation policy
\nbe addressed without examining the system of corporate cronyism?
\nAnd can cronyism be addressed without returning to the
\nfundamental question of national reform?<\/p>\n
Are foreign lawyers really the problem? Just as law -- a
\nconstitution -- is at the foundation of a nations' existence,
\nlocal lawyers are central to national reform.<\/p>\n
Let the various Indonesian lawyers associations initiate
\ndialog toward civil service reform and tax reform, business law
\nreform and government reform. As the loopholes for legal abuse
\nand the motives for exploiting legal loopholes disappear, the
\nproblem of illegal foreign lawyers may all but disappear.<\/p>\n
The writer, an attorney and former American diplomat, is
\npresident director of PT Far Horizons.<\/p>",
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