Foreign legal consultants: Assets or liabilities?<\/p>\n
By Stefanus Haryanto<\/p>\n
BANDUNG (JP): As Indonesia grows to be one of Asia's major
\ntrading countries, the need for competent legal consultants is
\nalso increasing.<\/p>\n
Since the 1980s, foreign lawyers have been coming to Indonesia
\nto solicit their services, especially to provide legal opinions
\non aspects of international business.<\/p>\n
Despite a government regulation that prohibits them from
\npracticing law in Indonesia, foreign lawyers are able to bypass
\nthe red tape by using Indonesian lawyers as their \"employers\".<\/p>\n
If necessary, foreign lawyers are willing to pay massive fees
\nto Indonesian lawyers who work as their \"dummies,\" so they can do
\nbusiness in Indonesia.<\/p>\n
They are willing to pay these top-dollar sums because
\nIndonesia's status as a booming \"Asian Tiger\" means the legal
\nbusiness in this country is very lucrative and the foreigners can
\nearn millions of dollars.<\/p>\n
As the legal world in Indonesia has become increasingly
\ndominated by foreign legal consultants, many Indonesian lawyers
\nare afraid that they will become \"guests in their own country\".<\/p>\n
This feeling is legitimate since international business
\nactivity requires good legal skills and a high proficiency in
\nEnglish. Foreign legal consultants definitely meet this
\nrequirement. Therefore, it is understandable that Indonesian
\nlawyers want some kind of protection from the government to
\nprevent them from being preyed on by foreigners.<\/p>\n
Indonesia is not the only country which is being forced to
\ndeal with an invasion of foreign legal consultants. In the United
\nStates, the Supreme Court, in the Griffiths case, held that U.S.
\ncitizenship was an unconstitutional prerequisite for admission to
\npractice law in a state. As a result of this case, there are
\ncurrently three methods by which a foreign national may practice
\nlaw in the United States.<\/p>\n
The first is to attend an accredited law school and pass the
\nstate bar exam as Ms. Griffiths did. Second, an individual may
\nqualify to take the state bar exam by completing a Master of
\nComparative Law or Master of Laws degree, or by completing an
\nequivalent number of hours of study at an accredited law school.<\/p>\n
Third, people with prior education and practice in a country
\nwhose jurisprudence is based on English common law may take the
\nbar exam without additional legal education.<\/p>\n
In American Journal of International Law (1986), William R.
\nSlomanson stated that allowing foreign legal consultants to
\npractice in the U.S. expresses an attitude of international
\ncooperation and opened the door to the expansion of local law
\nfirms into the international market place.<\/p>\n
Access to foreign legal markets is secured by allowing foreign
\nlawyers to practice in the U.S. The principle of reciprocity was
\nadopted by France and Japan, and it seems that the principle is
\nadopted by any country that allows the practice of foreign legal
\nconsultants in its territory.<\/p>\n
In Japan, the enactment of Law Number 66 of 1987 made it
\npossible for foreign lawyers to practice there.<\/p>\n
In order to be licensed to practice law in Japan, a foreign
\nlawyer must have practiced law in the foreign jurisdiction in
\nwhich he or she was originally licensed for five years; be in
\ngood legal or professional standing in his or her home country;
\nhave sufficient financial resources to establish him\/herself and
\nbe capable of self-indemnification; and be licensed in a
\njurisdiction that allows Japanese lawyers to practice as foreign
\nlegal consultants in that jurisdiction.<\/p>\n
According to the law, foreign legal consultants are not
\npermitted to represent clients in judicial proceedings, and they
\nmay not advise on Japanese law.<\/p>\n
In Indonesia foreign legal consultants are regulated by the
\nminister of justice decree number M.01.HT04.02 of 1991.<\/p>\n
According to this regulation, foreign legal consultants are
\nnot permitted to practice law in Indonesia under their own names.<\/p>\n
They may only work here as employees of Indonesian legal
\nconsultants provided they have obtained work permits from the
\nMinistry of Labor.<\/p>\n
Working permits are issued for one year, and can be extended
\nfor up to four years. Foreign legal consultants in Indonesia are
\nobliged to obey existing laws and regulations, improve the
\nquality of the legal services of the firms where they work,
\ntransfer their professional legal skills to Indonesian lawyers,
\nand undertake public services for educational or governmental
\ninstitutions.<\/p>\n
Foreign legal consultants are only permitted to give their
\nservices on the law of their respective countries, the law of
\nother foreign countries, and international law. Periodically, the
\nMinistry of Justice may determine the special fields of the law
\nthat still require the services of foreign legal consultants.<\/p>\n
The increase of businesspeople's awareness of the importance
\nof having competent legal advice, makes the legal business a very
\nlucrative one.<\/p>\n
Unfortunately, it is difficult to hire a good Indonesian
\nlawyer who is proficient enough in oral and written English.<\/p>\n
Therefore, as long as Indonesian law schools cannot produce
\ngood enough lawyers with suitable English proficiency, the
\nservice of foreign legal consultants is still needed.<\/p>\n
If those foreigners who currently work as employees in
\nIndonesian law firms actually perform their obligations set forth
\nby the regulation, inter alia to transfer their know-how to their
\nIndonesian associates, their presence in Indonesia can be
\nconsidered mutually beneficial.<\/p>\n
However, if they manipulate the regulation just to reap big
\nrewards, they are no more than a parasite in the Indonesian legal
\ncommunity.<\/p>\n
If this is the case, the Indonesian government should take
\nfirm action to deal with those who care for nothing but money.<\/p>\n
In addition, to strictly supervise foreign legal consultants
\npractising in Indonesia, the government should initiate a
\ncomprehensive training program for young, bright Indonesian
\nlawyers, to enable them to make a success of their own practices
\nas qualified legal consultants.<\/p>\n
If this program is successful, in due course Indonesia will
\nhave enough capable lawyers to do the work currently being done
\nby foreigners. In this regard, the government should impose
\nobligations on foreign legal consultants to assist this \"national
\nprogram\".<\/p>\n
In my opinion, government protection will not save Indonesian
\nlawyers from being preyed on by foreign lawyers.<\/p>\n
If they want to survive in the future, Indonesian lawyers
\nshould improve their legal skills and their ability to master
\nEnglish. In this regard, it is now up to the Indonesian lawyers
\nto decide whether they want to be the hosts or just guests in
\ntheir own country.<\/p>\n
The writer is a lawyer and a lecturer of law at Parahyangan
\nCatholic University.<\/p>\n
Window: Therefore, as long as Indonesian law schools cannot produce
\ngood enough lawyers with suitable English proficiency, the
\nservice of foreign legal consultants is still needed.<\/p>",
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