First Amendment Protects Attorney Who in Good Faith Advises Client Even If The Advice Is Later Determined To Be Incorrect: A Most Eloquent and Impassioned Defense of The Constitutional Right to Advice of Counsel

It may be hard to find a more eloquent and impassioned defense of the constitutional right of an attorney to give, and a client to receive, advice of counsel than in the decision in Vinluan v. Doyle, 60 A.D.3d 237, 873 N.Y.S.2d 72 (Appellate Division, 2nd Department, January 13, 2009). The matter granted a petition for Article 78 review brought on by a group of ten nurses and their attorney to prohibit the Suffolk County district attorney from prosecuting, and Supreme Court justice from presiding over, a criminal case against the nurses, who were indicted for the misdemeanor offenses of conspiracy in the sixth degree, endangering the welfare of a child, and endangering the welfare of a physically-disabled person.

The prosecution came in the aftermath of their simultaneous resignations from positions at a Long Island nursing home. The attorney who provided these nurses with legal advice was also indicted for allegedly advising them to commit a crime.

The Court held that the constitutional prohibition in the Thirteenth Amendment against involuntary servitude would be violated by prosecuting these nurses, and that the prosecution of their attorney would violate his constitutionally-protected rights expression and association accorded by the First and Fourteenth Amendments. An attorney has a constitutional right to provide legal advice to his clients within the bounds of the law.

The Court held that since the nurses’ conduct in resigning cannot, under the circumstances of this case, subject them to criminal prosecution, it could not agree that Vinlaun advised the nurses to commit a crime. More importantly, regardless of whether Vinlaun’s legal assessment was accurate, it was objectively reasonable, said the Court. And here’s where the eloquence and passion comes in: “We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect. Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice.

“The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing. A looming threat of criminal sanctions would deter attorneys from acquainting individuals with matters as vital as the breadth of their legal rights and the limits of those rights. Correspondingly, where counsel is restrained, so is the fundamental right of the citizenry, bound as it is by laws complex and unfamiliar, to receive the advice necessary for measured conduct. Moreover, by placing an attorney in the position of being required to defend the advice that he or she has provided, the state compels revelation of, and thus places within its reach, confidential communications between attorney and client.

“Such communications have long been held to be privileged in order to enable citizens to safely and readily secure “the aid of persons having knowledge of the law and [skill] in its practice. A prosecution which would compel the disclosure of privileged attorney-client confidences, and potentially inflict punishment for the good faith provision of legal advice is, in our view, more than a First Amendment violation. It is an assault on the adversarial system of justice upon which our society, governed by the rule of law rather than individuals, depends.”

The petitioning nurses, all from the Republic of the Philippines, simultaneously resigned from their positions at Avalon Gardens Rehabilitation and Health Care Center (hereinafter Avalon Gardens), a nursing home located in Smithtown, New York.

Among the patients at Avalon Gardens are chronically ill children who need the assistance of ventilators to breathe. All of the nurses were trained to care for children on ventilators, and five of the nurses worked almost exclusively with these children. The nurses were recruited to work in the United States by the Sentosa Recruitment Agency, a Philippines-based company that hires nurses for several nursing care facilities in New York controlled and managed by Sentosa Care, LLC (hereinafter Sentosa).

The nurses resigned, they claimed, over unheeded complaints regarding their pay and working conditions. The nurses complained that Avalon Gardens had not obtained their limited nursing licenses, thus initially requiring many of the nurses to work as clerks for about $12 per hour, and that they were housed in a single-family staff house with only one bathroom, inadequate heat, and no telephone service. The nurses made informal oral complaints and then wrote several letters to Sentosa and Avalon Gardens outlining their concerns, including the failure to compensate them properly for overtime and night shifts, short staffing, and last minute shift changes.

The nurses ultimately retained the petitioner Felix Vinluan, an attorney specializing in immigration law. When Vinluan met with the nurses to discuss their options, they told him that they wanted to resign because they could not tolerate the working conditions they were experiencing much longer. Vinluan advised the nurses that under the New York Education Law, they could not leave their positions during a shift when they were on duty, but they had the right to resign once their shifts had ended.

On April 6, 2006, Vinluan he filed a complaint on their behalf with the Office of Special Counsel for Immigration Related Unfair Employment Practices. On the following day, April 7, 2006, the nurses resigned from their employment either at the end of their shift, or in advance of their next shift, using an identical form letter which they had agreed upon together. The amount of notice provided before the next scheduled shift for each nurse ranged from 8 to 72 hours. Vinluan claims that he was unaware of the nurses’ intention to resign on April 7.

In the wake of the resignations, Sentosa commenced a civil action against Vinluan and the nurses in the Nassau County Supreme Court seeking damages, inter alia, for breach of contract and tortious interference with contract.

In addition, Avalon Gardens’ Director of Nursing sent the New York State Education Department (hereinafter the Education Department) a letter of complaint charging that the nurses had abandoned their patients by simultaneously resigning without adequate notice. Following an investigation, on September 28, 2006, the Education Department closed the nurses’ cases, concluding that they had not committed professional misconduct because none of them had resigned in mid-shift, and no patients were deprived of nursing care since the facility was able to obtain appropriate coverage.

However, in March 2007, nearly one year after the resignations, a Suffolk County Grand Jury handed down a 13-count indictment against the petitioners. Vinluan and the nurses separately moved to dismiss the criminal indictment in the Supreme Court, Suffolk County. The Supreme Court denied the motions to dismiss and the Article 78 petition for a writ of prohibition ensued. The nurses and their attorney challenged the prosecution against them citing violations of First, Thirteenth, and Fourteenth Amendments of the United States Constitution.

The Thirteenth Amendment to the United States Constitution, enacted at the conclusion of the Civil War primarily to abolish the institution of slavery, declares that involuntary servitude shall not be permitted to exist within the United States. The issue before the court was to determine whether the constitutional prohibition against involuntary servitude would be violated by prosecuting these nurses, and whether the prosecution of their attorney would violate constitutionally-protected First Amendment rights. The Court found that these criminal prosecutions constituted an impermissible infringement upon the constitutional rights of these nurses and their attorney, and issued a writ of prohibition to halt the prosecutions.

The Appellate Division held that the petitioners raised claims of a compelling constitutional dimension. The Court agreed that the prosecution itself is not a proper proceeding because it contravenes the Thirteenth Amendment proscription against involuntary servitude by seeking to impose criminal sanctions upon the nurses for resigning their positions, and attempts to punish Vinluan for exercising his First Amendment right of free speech in providing the nurses with legal advice.

Said the Court, “the petitioners are threatened with prosecution for crimes for which they cannot constitutionally be tried, the potential harm to them is ‘so great and the ordinary appellate process so inadequate to redress that harm’ that prohibition should lie.”

The fact that the prosecution may serve a legitimate societal aim of enormous importance, that is protecting vulnerable children from harm, did not suspend the nurses’ constitutional right to be free from involuntary service. Limiting the nurses’ ability to freely exercise their right to resign from the service of an employer who allegedly failed to fulfill the promises and commitments made to them is the antithesis of the free and voluntary system of labor envisioned by the framers of the Thirteenth Amendment.

The Court noted that the nurses did not abandon their posts in the middle of their shifts. Rather, they resigned after the completion of their shifts, when the pediatric patients at Avalon Gardens were under the care of other nurses and staff members. Additionally, it was undisputed that coverage was indeed obtained, and no children were deprived of nursing care. In a stinging remark, the Court observed that under the facts as presented, the greatest risk created by the resignation of these nurses was to the financial health of Sentosa.

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