Protocols for Interactions with International Students

1. Protocols for Interactions with International Students In a Student Legal Service Practice

2. Key Issues for InternationalOrientation Leaders to Share with Incoming Students

3. 1. Before developing a flexible protocol, first examinethe data that you have available in your office regarding: - office usage by International Students, - top areas of consultation and representation by International Students, and - the nature and topical interests that arose in previous orientations. 2. How much time do you have at orientation? 15 minutes, 30 minutes, 60 minutes?

4. What can students who may be suffering from jet lag and culture shock be reasonably expected to retain? You may have six key topics but may in fact need to select just one where you can be most preven- tativeand impactful. • Can you obtain the basic demographics of your potential audience in advance of orientation? Is China/Taiwan the majority? India/Pakistan? Korea? Middle-East? What language barriers might exist? Most Univer- sitiesrequire minimal proficiency in English. Many students are highly proficient but few are proficient in the language of law.

5. Avoid legal jargon and terminology. • For example, do not say actusrea, mensrea and other Latin • terms you might use in an appellate brief. • Let the students know that if you are talking too fast • or too softly they can yell out “slow down” or “louder” and this is fine with you. • In most cultures interrupting a speaker is considered very rude but in this instance you need to welcome this feedback. • Why? Because many students are translating what you are presenting, which means if you are a “fast talking lawyer”, you have lost them right after you begin talking.

6. Note that in many cultures the legal profession is not common and may not enjoy prestige or influence. • You may need to explain the role of attorneys in U.S. during your introduction outlining your program before you go to your topic(s). • Have written materials: • - Program Guide, • - Guide to your topic(s). • Don’t overload. • - Provide a memorable tchotchke. • SLS at U of I uses computer keyboard brushes • and we make it a bit of a game for students to • guess what they are.

7. 9. Use visual aids, humor, self-deprecation, power point etc. • 10. Leave time for questions and answers. • Make sure they know where they can find out more about your • topic and others, and • How to Locate, E-mail, and Call the office. www.odos.illinois.edu/sls Fall 2013: 1stFloor, Levis Faculty Center, 919 West Illinois, across from ISR (Back to: 324 Illini Union, Spring, 2014) 217-333-9053

8. Protocol for Driving Related Issues

9. What To Do During a Traffic Stop • When you see the police lights or hear the siren, pull your car over to the nearest safe area to stop, as soon as possible. • Do NOT try to flee either by car or on foot. • Stay in your car and wait for the police officer to come to the driver’s side of your car. • Keep your hands in sight on the steering wheel. • Do not make sudden movements. • Stay in the car unless ordered to get out. • Do NOT try to touch the police officer.

10. What To Do During a Traffic Stop • Roll your window partially down. You will be asked to produce: • Driver’s License, • Registration, and • Proof of Insurance. • Produce them for the officer. • Always provide the officer with your Name and Address when asked. • Providing a false name is a serious crime in Illinois. • The officer will inform you about what law you were disobeying. • Sometimes the police will ask you if you know what you were doing wrong. • It is ok to answer, “What do you think I was doing • wrong; I am not exactly sure.”

11. What To Do During a Traffic Stop • If you are given a ticket, sign it. • Signing a ticket is not an admission of guilt. • NEVER offer in any way to give the officer • money not to issue the ticket. • Attempting to bribe an officer is a crime, • and you will go to jail. • Do NOT argue with the officer. • You can always fight the ticket in court with assistance of Student Legal Service for Champaign County tickets. • Do NOT tell the officer that: • You will sue him/her. • That your mom/dad is a lawyer and will have his/her job.

12. What To Do During a Traffic Stop • The officer may ask you to give him money for bond if it is a serious offense. • This will keep you from going to jail. • You will still have to go to court. • If you are later found not guilty, the money will be returned to you. • Or, the officer may keep your license as bond. • You may legally continue to drive with the ticket substituting for your license until your case is resolved in court The officer does not generally have the right to insist on seeing your passport and should not retain it if you provide it. • A passport is NOT a valid form of bond for routine traffic tickets.

13. What To Do During a Traffic Stop • You may refuse permission to have your vehicle searched. • You may say, if your consent is requested, “I do not consent to my car being searched”. • If there is probable cause for an offense, the officer may search without your permission. • Some tickets can result in you being formally arrested and taken to jail: • Driving under the Influence of Alcohol or Drugs, • Driving on Suspended or Revoked License, • Presenting false License or Insurance, • and several others. • Don’t panic. Come to the Student Legal Service office after you are released from Jail. • DRIVE SAFELY!

14. Consultation/Representation Protocol for International Students inCriminal and Quasi-Criminal Interviews

15. Make sure your intake form for criminal/ misdemeanor, quasi-criminal (city ordinance violations) and traffic* contains a notation about student status. • Are you an International Student? • Are you a U.S. Citizen? • Are you a permanent resident? * In Illinois, traffic cases are often criminal-misdemeanors

16. Intake system will not permit completion of the online form without the above question being answered. • This saves the embarrassment of having to ask during the consultation and permits the staff attorney to be prepared to use the Acknowledgement of Possible Collateral Consequences form.

17. Never assume you can judge citizenship or international student status based on appearance or characteristics of the student such as • Name • Permanent/home address • Accent or lack thereof. Failure to obtain student status accurately can constitute legal malpractice and, more importantly, your client can suffer extreme collateral consequences.

18. In conducting the interview, it is critical that the notion of “confidentiality” as the key to the attorney-client relationship be the first item for discussion after introductions. • The protection of the attorney-client relationship is not universal, and, in fact, • Is not conceptually or culturally part of the legal or intellectual framework for students from many non-western cultures.

19. The privilege “confidentiality” is basic to the legal profession but is by no means fully understood by U.S. students who have been inundated with this notion via television, movies, internet, books, etc. - As Student Legal Service attorneys, we should not be surprised that international students are very cautious about what and how they share information with staff attorneys. - “I can lose my job and the right to practice law if I tell others what you tell me,” is one approach to reinforcing that they can trust the attorney not to divulge without permission. - However, “I will disclose to the extent necessary to achieve your goals by talking with the Prosecutor and through filing documents with the court.”

20. Share a copy of the Rule of Professional Responsibility, if necessary. • Comparing attorney-client confidentiality to that of priest-penitent is often a culturally irrelevant reference point, which may lead to a blank stare. - Tell the student that they can tell you secrets and that no one can require that you tell. - However, if the student tells others, then it means that they were not really relying on secrecy and those folks can be required to tell the secret in court. - Inform the client, “Do NOT share on Facebook, on Twitter or in email any aspect of your case. If you do, you can expect it to be used against you.”

21. Language proficiency among international students varies from superb skill in English to minimal. It is a rare International Student, or even a U.S. student, that will have a proper command of legal nomenclature and the processes of the system. DO NOT USE LEGAL JARGON!

22. Speak distinctly with a clear break between words, and slow down, if necessary. - “If there is anything that you do not understand, please feel free to say, ‘could you explain that’, or ‘could you repeat that’. - Students need to feel free to ask questions. - As an attorney, you may be regarded as an authority figure that cannot be interrupted or questioned.

23. 10. Often International Students are taught British English as their second language. Spoken American English is almost, though not quite, a different language than formal British English.

24. Third Parties in Consultation

25. 11. Many times students will want another student/friend to be present during the interview for “moral support” or “translation.”- On occasion, the third party is also a witness or a party to the incident.- Sometimes the student is coercing the presence of the student/ friend to prevent facts from being disclosed to an attorney.- As a matter of ethics and policy, University of Illinois Student Legal Service discourages the presence of third parties in the interview and will NOT permit it until - there has been a chance to discuss the matter without the third party being present, and- then the client must sign a “Waiver” which explains the risks (see sample waiver).

26. - Providing the option to speak with you alone and then having the follow-up conversation with the third party provides “cover” for the student client.- It is you as the attorney that is making the initial decision and avoiding the conflict with the third party at the inception of the process.12. Student Translators can be useful, but they are usually friends who are not court-certified, and rarely do they have a meaningful grasp of confidentiality. - These shade-tree translators are not your staff members and are not bound by the umbrella of office confidentiality.

27. 13. There are also some cultural issues in which female clients are being chaperoned by a male relative while on campus. - This occasionally occurs with students from very traditional Middle Eastern cultures. - The presence of the male chaperone is the only condition under which the female can have a consultation. - The very issue that the female is seeking help for may arise from the actions of the chaperone. - Possible solutions: - Have the interview done by a female attorney - Have the interview done on Skype or via telephone - Obtain a referral to an attorney with similar cultural background who may be more adroit at finessing the issue.

28. Once you have developed a rapport with the client and have the basic facts, it is time to discuss legal approaches and the process. BUT…

29. How can I plead not guilty when I am guilty? The police charged me, I must be wrong. I told the officer, “I am so sorry, I am so sorry.” NOTE: Is this a confession or cultural response to authority? What is arraignment? What do I do in court? Will you be with me? Will the university find out? Will I be deported? Will my country find out? In Illinois, the Secretary of State Driver’s Services handles driving records. Make it clear this “Secretary of State” has nothing to do with foreign relations or immigration.

30. These are a few of the questions that the client will interject. - Provide a visual picture of the process; if you have a pamphlet or guide, supply it. - Many international students read English far better than they speak or understand it orally. - Once the process is described, it is a good idea to have the client verbalize the next steps back to you. In assessing program effectiveness, we learned that clients did not consistently know what the next step or steps in their cases were. - We now prompt for knowledge of next steps/actions. - Assessment shows overwhelming client knowledge.

31. Now you can talk about the “BUT” panic bullet points in 14 above more effectively. Keep in mind that if the client remains unusually stressed about going to court, they can go to court to sit in the gallery to observe when the court is handling similar matters so they have a feel for the process.

32. The “BUT” panic bullet points are your Teachable Moments. Most Student Legal Service programs assess Educational Outcomes with survey questions on a Kikert scale, using questions such as: Through my experience in the legal process, and because of the particular way Student Legal Service I … - Have a better understanding of the legal process. - Am better equipped to handle similar situations in the future. - Have a better understanding of the options available - Have a better understanding of the role and functions of attorneys. - Have a greater understanding of the U.S. legal/judicial system, as a whole.

33. There some obvious cultural barriers when discussing issues where students come from societies in which • The presumption of innocence does not exit, • The power structures and traditions are authoritarian, • “Rights” may be enshrined in written form, but are illusory in practice, • Obeisance to police is an automatic response, • Attorneys’ first loyalty is to the “state” or the “party” not the individual client. • The U.S. Bill of Rights is profoundly about Individual Rights, and this is culturally ingrained throughout our society and fundamental to American lawyer. • At no point in the U.S. Bill of Rights does it speak of the “duty” or “obligation” of the individual.

34. The Constitution of the People’s Republic of China, Chapter II, The Fundamental Rights and Duties of Citizens, consistently is framed in terms of duties to the state and society, e.g., • Article 41, “right as well as the duty to work,” • Article 46, “duty as well as the right to receive education,” • Article 49, “duty to practice family planning,” “duty to support and assist their parents,” • Article 55, “duty to perform military service,” • Article 56, “duty to pay taxes.”

35. In theory, as opposed to practice, there are free speech rights, search and seizure rights, and a right to religious freedom as well as equal protection of the laws. • The Chinese Bill of Rights does NOT guarantee a right to legal counsel, protections of confidentiality between attorney and client, the right to remain silent, etc. • In practice, all rights are subordinate to the interests and policies of the Communist Party, including the Court system.

36. The Constitution of the Republic of Korea (South Korea), Chapter II, Rights and Duties of Citizens, similarly has a focus on duties rather than rights of individuals, although Rights are explicitly stated. • Article 12(4) enshrines the right to counsel, “Any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel.” • U.S. Miranda warnings are enshrined in the text of Article 12(5), although right to remain silent is not explicit. • Article 12(7), at least in theory, provides greater protection, “Where confession is the only evidence against a defendant in a formal trial, such confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by reason of such confession.”

37. As in People’s Republic of China, there is a clause that potentially subjugates “guaranteed” rights. Article 37(2), “Freedoms and rights of citizens may be restricted by Act only when necessary for national security, maintenance of law and order or for public welfare. Even when such restriction is imposed, essential aspects of the freedom or right shall not be violated. • The Constitution of India contains fundamental rights with legal and constructional protection of the fundamental rights. • Citizens have a “right” to seek protection of the Supreme Court and other courts for enforcement of rights. However, there is also provision for the Suspension of rights. • Various rights are also subject to limitation if their exercise is a violation of “morality”.

38. There are protections against arbitrary arrest and provisions for due process. • Upon arrest, there is a “right” to consult an attorney and to arraignment within 24 hours. • However, civil courts are notoriously backlogged in India; the criminal courts much less so. • The role and functions of attorneys are culturally recognized and given legitimacy. Gandhi, like Lincoln, was a lawyer. • The judiciary is quite independent from the other branches of government. • Attorneys are not agents of the State, and there is a recognized attorney-client confidentiality, even if in practice, consultations may be done in public settings.

39. If you know the country of origin for your International Student, google that country’s Bill of Rights and take a few minutes to read it. While rights are often purely aspirational, they are revealing of cultural mindset in terms of dealing with you as an attorney and the U.S. legal framework. Your client may, indeed, have very good reasons to distrust the notion of confidentiality, or that he can really enter a plea of not guilty to a charge.

40. The opportunity to educate yourself about the student’s legal culture will help you explain the process and procedures that will take place in the case. Step 1: Arrest Step 2: Arraignment – where you get the formal paper with the charge and enter a plea of NOT GUILTY. Step 3: Discovery – where the state has to turn over its reports and records. Step 4: Motions – where defense challenges legal aspects of the case before an impartial judge Step 5: Pretrial – where the case can be resolved through negotiation, dismissal, or amendment, or scheduled for trial. Provide a timeline and let the student know you will be with them every step of the way.

41. In entering an “appearance of counsel”, we always demand a trial by jury, which in Illinois, is provided for even in routine traffic cases. - This means it is necessary to explain briefly the jury system and that it is extremely unlikely actually to take place, as most matters are settled through plea bargains. - Of course, this then means you have another Teachable Moment explaining the nature and practicalities of plea bargaining. ~ “We negotiate all sorts of things: the price of cars, the terms of leases, the price of food in public markets, and other items.” ~ Negotiation is an almost universal concept, although not in the context of the criminal justice system.

42. Student Legal Service attorneys are, first and foremost, attorneys, but also Educators about the legal process and values which may greatly influence, in positive ways, the legal cultures where our students come from. Who knows? Their experience with you and the U.S. system may act as an impetus for improvement in the home country, assuming there is a need for improvement. Always be prepared to acknowledge the imperfections of our own legal system.

43. REVIEW OF COLLATERAL CONSEQUENCES

44. The University of Illinois Student Legal Service uses an Acknowledgement of Collateral Consequences form, which contains twelve (12) bullet point items. The points should be reviewed and explained with the client before a final plea is entered on the case, or the case is referred to private counsel. We take notes and have the client sign the acknowledgement, and each party has a copy.

46. ENTERING THE GUILTY PLEA

47. If your courts use written waiver forms for traffic, misdemeanor, and city ordinance violation cases, review the contents with the client in the office. Avoid last minute review in court, if possible. • The law requires a “knowing”, “voluntary” waiver of rights with advice of counsel. • Again, the concept of “rights” is not real for many International Students, and they, as well as U.S. students, will sign a waiver without reading the document. • The court, in accepting a waiver, must make an ascertainment that there has been a knowing and voluntary waiver, but this is often perfunctory. • For example, the judge will ask, “Do you understand that by pleading guilty there will not be a trial by judge or jury?” Answer: Head nod, or “Yes.”

48. The judge never asks, “Could you describe what a jury trial is and how many jurors it takes to vote for you to be found guilty?” (Of course, many citizen clients couldn’t answer this correctly, either.) • The more expansive question is the one we as SLS attorneys need to have with our clients to insure that there is meaningful knowledge rather than rote. • Don’t be embarrassed to request a certified translator for the proceedings. • In many cases, the court is required to mention that there could be Immigration issues arising from a guilty plea, but the admonishment will not be specific.

49. Failure to disclose collateral consequences may not invalidate a guilty plea and is not necessarily ineffective assistance of counsel, but it may be MALPRACTICE for SLS attorneys who deal regularly with International Students in matters that have Immigration impacts. • SLS attorneys may have a higher duty of care because of the nature of the clientele. • Under Padilla, if it is reasonably certain to have specific consequences, those must be disclosed. • In Illinois, failure to tell someone a conviction would impact their “plumber’s license” was found to be malpractice. Who knows what specific facts led to this scary outcome.

50. CIVIL CONSULTATION/REPRESENTATION FOR INTERNATIONAL STUDENTS