The Risk Manager, Fall 2008

With ever more foreign nationals living in Kentucky, it becomes of increasing importance to keep up with international law to avoid malpractice – especially as it applies to foreign nationals accused of crimes in this country. A current issue is whether it is ineffective assistance of counsel to fail to advise foreign national clients of their rights under Article 36 of the Vienna Convention on Consular Relations. This article and implementing federal regulations require that foreign nationals arrested in the U.S. be promptly advised of their right to consult with their country’s consular mission.

Osagiede v. United States (7th Cir., No. 07-1131, 9/9/08) is an informative recent case dealing with this issue. Space limitations preclude a full review of the decision here. In short, the 7th Circuit ruled that an ineffectiveness claim based on defense counsel’s failure to advise a foreign national client of consular consultation rights is a justiciable claim warranting an evidentiary hearing. The Court reviewed Article 36 in detail, applied the Strickland two-pronged ineffectiveness test to the facts, and considered contrary authority to include the 6th Circuit case of United States v. Emuegbunam, 268 F.3d 377, 386-95 (6th Cir. 2001).

We urge criminal defense counsel to read Osagiede. Good risk management requires that you know what you are doing and practice in a way to prevent both meritorious as well as frivolous claims – both can be costly. Even if you disagree with Osagiede’s holding (see Commonwealth v. Padilla, 253 S.W.3d 482 (Ky. 2008)), the percentage approach is to promptly advise a foreign national client of consular consultation rights. This should prevent claims, and best of all is a more thorough representation of your client.