Foreign legal consultants: Assets or liabilities?

Foreign legal consultants: Assets or liabilities?

By Stefanus Haryanto

BANDUNG (JP): As Indonesia grows to be one of Asia's major
trading countries, the need for competent legal consultants is
also increasing.

Since the 1980s, foreign lawyers have been coming to Indonesia
to solicit their services, especially to provide legal opinions
on aspects of international business.

Despite a government regulation that prohibits them from
practicing law in Indonesia, foreign lawyers are able to bypass
the red tape by using Indonesian lawyers as their "employers".

If necessary, foreign lawyers are willing to pay massive fees
to Indonesian lawyers who work as their "dummies," so they can do
business in Indonesia.

They are willing to pay these top-dollar sums because
Indonesia's status as a booming "Asian Tiger" means the legal
business in this country is very lucrative and the foreigners can
earn millions of dollars.

As the legal world in Indonesia has become increasingly
dominated by foreign legal consultants, many Indonesian lawyers
are afraid that they will become "guests in their own country".

This feeling is legitimate since international business
activity requires good legal skills and a high proficiency in
English. Foreign legal consultants definitely meet this
requirement. Therefore, it is understandable that Indonesian
lawyers want some kind of protection from the government to
prevent them from being preyed on by foreigners.

Indonesia is not the only country which is being forced to
deal with an invasion of foreign legal consultants. In the United
States, the Supreme Court, in the Griffiths case, held that U.S.
citizenship was an unconstitutional prerequisite for admission to
practice law in a state. As a result of this case, there are
currently three methods by which a foreign national may practice
law in the United States.

The first is to attend an accredited law school and pass the
state bar exam as Ms. Griffiths did. Second, an individual may
qualify to take the state bar exam by completing a Master of
Comparative Law or Master of Laws degree, or by completing an
equivalent number of hours of study at an accredited law school.

Third, people with prior education and practice in a country
whose jurisprudence is based on English common law may take the
bar exam without additional legal education.

In American Journal of International Law (1986), William R.
Slomanson stated that allowing foreign legal consultants to
practice in the U.S. expresses an attitude of international
cooperation and opened the door to the expansion of local law
firms into the international market place.

Access to foreign legal markets is secured by allowing foreign
lawyers to practice in the U.S. The principle of reciprocity was
adopted by France and Japan, and it seems that the principle is
adopted by any country that allows the practice of foreign legal
consultants in its territory.

In Japan, the enactment of Law Number 66 of 1987 made it
possible for foreign lawyers to practice there.

In order to be licensed to practice law in Japan, a foreign
lawyer must have practiced law in the foreign jurisdiction in
which he or she was originally licensed for five years; be in
good legal or professional standing in his or her home country;
have sufficient financial resources to establish him/herself and
be capable of self-indemnification; and be licensed in a
jurisdiction that allows Japanese lawyers to practice as foreign
legal consultants in that jurisdiction.

According to the law, foreign legal consultants are not
permitted to represent clients in judicial proceedings, and they
may not advise on Japanese law.

In Indonesia foreign legal consultants are regulated by the
minister of justice decree number M.01.HT04.02 of 1991.

According to this regulation, foreign legal consultants are
not permitted to practice law in Indonesia under their own names.

They may only work here as employees of Indonesian legal
consultants provided they have obtained work permits from the
Ministry of Labor.

Working permits are issued for one year, and can be extended
for up to four years. Foreign legal consultants in Indonesia are
obliged to obey existing laws and regulations, improve the
quality of the legal services of the firms where they work,
transfer their professional legal skills to Indonesian lawyers,
and undertake public services for educational or governmental
institutions.

Foreign legal consultants are only permitted to give their
services on the law of their respective countries, the law of
other foreign countries, and international law. Periodically, the
Ministry of Justice may determine the special fields of the law
that still require the services of foreign legal consultants.

The increase of businesspeople's awareness of the importance
of having competent legal advice, makes the legal business a very
lucrative one.

Unfortunately, it is difficult to hire a good Indonesian
lawyer who is proficient enough in oral and written English.

Therefore, as long as Indonesian law schools cannot produce
good enough lawyers with suitable English proficiency, the
service of foreign legal consultants is still needed.

If those foreigners who currently work as employees in
Indonesian law firms actually perform their obligations set forth
by the regulation, inter alia to transfer their know-how to their
Indonesian associates, their presence in Indonesia can be
considered mutually beneficial.

However, if they manipulate the regulation just to reap big
rewards, they are no more than a parasite in the Indonesian legal
community.

If this is the case, the Indonesian government should take
firm action to deal with those who care for nothing but money.

In addition, to strictly supervise foreign legal consultants
practising in Indonesia, the government should initiate a
comprehensive training program for young, bright Indonesian
lawyers, to enable them to make a success of their own practices
as qualified legal consultants.

If this program is successful, in due course Indonesia will
have enough capable lawyers to do the work currently being done
by foreigners. In this regard, the government should impose
obligations on foreign legal consultants to assist this "national
program".

In my opinion, government protection will not save Indonesian
lawyers from being preyed on by foreign lawyers.

If they want to survive in the future, Indonesian lawyers
should improve their legal skills and their ability to master
English. In this regard, it is now up to the Indonesian lawyers
to decide whether they want to be the hosts or just guests in
their own country.

The writer is a lawyer and a lecturer of law at Parahyangan
Catholic University.

Window: Therefore, as long as Indonesian law schools cannot produce
good enough lawyers with suitable English proficiency, the
service of foreign legal consultants is still needed.