Vol. 78, No. 11, November
The World is Flat ... and What That Means to You
Issues such as the unauthorized
practice of law, multidisciplinary
practice, and multijurisdictional practice will loom larger for
Wisconsin lawyers as the world flattens and nonlawyer practice
by D. Michael Guerin
"I kept chewing over that phrase - the playing field is being leveled
- and then it hit me: Holy mackerel, the world is becoming flat." _
Thomas L. Friedman1
If you have not yet read Thomas Friedman's book, The World Is
Flat, I strongly urge you to do so. If you have read it, you will
better understand both the title of this column and the quote.
In essence, Friedman, a foreign affairs columnist for The New
York Times, takes the position that the world has become "flat" in
the sense that global changes in recent years have opened world markets
as they have never been opened previously. In a wired.com interview,
Friedman states that he was in India conducting an interview when Nandan
Nilekani of Infosys told him, "the playing field is being leveled." What
Nilekani meant was that people in India and China would be competing for
work like never before, and that Americans were not "ready." Friedman
reached his conclusion based on his determination that "[s]everal
technological and political forces have converged, and that has produced
a global, Web-enabled playing field that allows for multiple forms of
collaboration without regard to geography or distance - or soon, even
"But, Mike," you ask, "what does any of this have to do with
practicing law?" The answer: Plenty. As recently as Oct. 15, 2005, money.com, the online version of
Money magazine, published an article entitled "Outsourcing the
Lawyers." The article noted the outsourcing trend in which both Fortune
500 companies and some of the United States' largest law firms were
outsourcing work to India, South Korea, Australia, and other countries.
At this time the shift involves only about 12,000 jobs, approximately 1
percent of all legal work. Forrester Research, a Cambridge,
Massachusetts-based market research firm, predicts that by 2015, the
legal industry job losses will increase to 79,000, with just over half
being attorney positions. The article also noted that most of the jobs
lost likely would involve legal assistants, paralegals, and "junior
lawyers who cut their teeth on rote assignments."
The globalization of the practice of law hits home in several areas
of long-standing concern for the State Bar: the unauthorized practice of
law (UPL), multidisciplinary practice (MDP), and multijurisdictional
practice (MJP). Whether we like it or not, lawyers and nonlawyers in
other locales, as well as members of other professions, appear ready and
willing to step in and do the work that Wisconsin lawyers are currently
doing. These persons may or may not have the ability to recognize all of
the legal issues involved in that work and, unfortunately, sometimes the
public will be harmed. We must do whatever we can to avoid or minimize
the potential for such harm.
One of the problems we face is that Wisconsin has no clear definition
of what constitutes the practice of law and, hence, what constitutes the
unauthorized practice of law.
Wisconsin Lawyer featured an article by Tom Zilavy
and Andrew Chevrez describing the background and scope of the State Bar
of Wisconsin's attempt, as yet unsuccessful, to convince the Wisconsin
Supreme Court to define the unauthorized practice of law. Zilavy and the
rest of the UPL Policy Committee have worked very hard on presenting
this issue, and I believe the article fully and fairly explains the
issue. They have given us an important task to complete.
The UPL Policy Committee is collecting examples of the unauthorized
practice of law to present to the court. If we are to make any headway
on this issue, we need to show the court examples of actions by
nonlawyers that harmed members of the public through what we believe to
be the unauthorized practice of law. These examples can be current or
from the past. We need everyone to document the cases they know about in
as much detail as they have.
If you have an example to share, please respond by Dec. 31, 2005.
I would like to comment on two examples of particular concern to me.
One concern, which is shared by members of the Wisconsin Hispanic
Lawyers Association, involves "notarios." The problem stems largely from
differences in language and legal culture between the U.S. and many
Spanish-speaking countries. In Mexico and some other Latin-American
countries, notaries public, known as "notarios," are akin to lawyers and
are able to engage in significant transactions. In fact, in many
Latin-American countries notarios have additional training and expertise
and hold esteemed, quasi-official positions.
In the U.S., of course, one can become a notary public simply because
one is an 18-year-old resident, not necessarily a citizen, with the
equivalent of an eighth grade education and without an unacceptable
arrest or conviction record. The problem is that some notaries public
establish offices, advertising themselves as "notarios" in primarily
Hispanic neighborhoods, and conduct significant "legal transactions" for
unsuspecting "clients." These "notarios" often lack the training and
skill to perform the services they provide, thereby putting their
clients at risk.
Some notaries public in the U.S. take advantage of the high regard in
which notarios are held by Latin-Americans and pass themselves off as
experts in immigration law. Many undocumented people pay "notarios,"
hoping to get help with immigration issues, but instead just get taken,
as the fees for "notarios" in the Milwaukee area often run into the
thousands of dollars. Undocumented people often are fearful of or
intimidated about reporting such conduct. Worse yet, if the "notario"
has filed fraudulent documents, there may be little a licensed Wisconsin
lawyer can do to rectify the wrongdoing of the "notario" once the
aggrieved person finally consults the lawyer - as the person should have
done in the first place.
Another concern is that the court's reluctance to define the
unauthorized practice of law may encourage other professions to seek
legislation that would try to legitimize actions that lawyers would view
as the unauthorized practice of law. There is a situation in which this
easily could have happened if not for vigilance by our profession.
Earlier this year, the State Bar became aware of a proposal put forward
by a Wisconsin Realtors® Association task force calling
for the introduction of legislation that would have permitted realtors
to provide the equivalent of legal advice. The only caveat would have
been that the realtor who provides the advice feel comfortable and
capable of giving that advice.
The State Bar's UPL Policy Committee and the Real Property, Probate
and Trust Law Section reviewed the task force report and raised serious
concerns with its recommendations. This work was instrumental in helping
the State Bar to make sure these questionable provisions were not
included in the version of the bill that ultimately was introduced in
the Wisconsin Legislature.
Do these examples constitute the unauthorized practice of law? This
is the question the Bar is attempting to answer as it studies this
Finally, although the money.com article characterizes the trend to
outsource to Asia and Australia as limited due to regulations governing
the practice of law in the U.S., the fact is that services such as
research, "back office work," and other "rote assignments" are provided
every day by licensed Wisconsin lawyers. The globalization or flattening
of the world threatens their positions just as much as does the realtor,
financial planner, or insurance salesperson who purports to give legal
advice without the benefit of a Wisconsin law license.
Regulation of the practice of law by lawyers is often criticized as
"protectionism." In reality, however, it is not only the legal
profession, but also the public, that is harmed by the unauthorized
practice of law by nonlawyers. I urge all of you to take the time to
respond to the UPL Policy Committee's request.
Please submit your examples on a UPL Complaint form, available at www.wisbar.org/upl, by Dec. 31,
1Thomas L. Friedman, interview with
wired.com, available at www.wired.com/wired.