Wisconsin Lawyer
Vol. 78, No. 11, November 2005

The World is Flat ... and What That Means to You

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 language."

"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.

The October 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 issue.

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, 2005.

¹Thomas L. Friedman, interview with wired.com, available at www.wired.com/wired.

Wisconsin Lawyer