Their Constitutional Rights Vindicated, Nursing Home Nurses and Their Attorney Continue to Fight the Good Fight

One of my favorite court decisions of 2009 was the Appellate Division, Second Department decision in Vinluan v. Doyle, 60 A.D.3d 237, 873 N.Y.S.2d 72. This is so because of the eloquent and impassioned defense of the constitutional right of an attorney to give, and a client to receive, advice of counsel.

The case involved the simultaneous resignation of ten nurses from positions at a Smithtown, Long Island nursing home, Avalon Gardens Rehabilitation and Health Care Center, over pay and other working conditions, including being required to work as clerks for about $12 per hour and being housed in a single-family staff house with only one bathroom, inadequate heat, and no telephone service. The nurses 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. (Among the patients at Avalon Gardens are chronically ill children who need the assistance of ventilators to breathe.)

Felix Vinluan, the attorney who provided these nurses with legal advice, was also indicted for allegedly advising them to commit a crime. The appellate decision granted an Article 78 petition to prohibit the Suffolk County district attorney from prosecuting, and Supreme Court justice from presiding over, the criminal case, holding 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.

It is most rare case for the prosecution of a criminal case to be prohibited by an Article 78 proceeding for a writ of prohibition. More rare is it for the prohibition to be based upon a First Amendment right of an attorney to give objectively reasonable advice. 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. Now the fight continues but this time it is the nurses, Mr. Vinluan and his attorney Oscar Michelen who are throwing the punches.

Calling the criminal prosecution a malicious prosecution, this past Wednesday the nurses and Mr. Vinlaun filed a federal lawsuit in U.S. District Court in Central Islip against Suffolk County District Attorney Thomas Spota, the county and the nursing home company, Sentosa Care, LLC, that sought unsuccessfully to prosecute them. The lawsuit seeks unspecified damages resulting from the criminal charges that the Appellate Court last year determined were unconstitutional.

The criminal prosecution was undertaken in the face of the closing by the New York State Education Department of a complaint made against the nursed by Avalon Gardens Director of Nursing charging that the nurses had abandoned their patients by simultaneously resigning without adequate notice. Prior to the indictment, 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.

In addition to the professional complaint, 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. This case is still pending, although in light of the appellate decision it was called a dead case walking by the nurses attorney, James Drucker. The Courts eloquence and passionin Vinluan is so inspiring that it bears repeating: 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.

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