Lawyer Cannot Be Prosecuted for Giving Advice, Panel Finds

The attorney last year denied encouraging the resignation by the nurses, who had been accused by the DA of abandoning their patients
A lawyer facing criminal charges for advising 10 nurses they could quit their jobs gave "objectively reasonable" advice and cannot be prosecuted, a New York appeals panel has unanimously ruled. "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," Justice Randall T. Eng wrote for the panel.

Vesselin Mitev

New York Law Journal

2009-01-20 12:00:00 AM

A lawyer facing criminal charges for advising 10 nurses they could quit their jobs at a Long Island, N.Y., nursing facility gave "objectively reasonable" advice and cannot be prosecuted, a Brooklyn appeals panel has ruled.

In a unanimous decision, the Appellate Division, 2nd Department, ruled that District Attorney Thomas J. Spota of Suffolk County must halt his prosecution of attorney Felix Vinluan and his clients.

"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," Justice Randall T. Eng wrote for the panel in Matter of Vinluan v. Doyle (pdf), 08-02568.

"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 panel said.

The nurses were recruited as a group from the Philippines by SentosaCare, which operates the Avalon Gardens Rehabilitation and Health Care Center in Smithtown, N.Y.

In April 2006, they left their posts in protest over job conditions.

The district attorney accused the nurses of abandoning their patients by leaving their shifts without giving administrators enough notice to find replacements.

They, along with Vinluan, were indicted in March 2007 on 13 counts, including charges of sixth-degree conspiracy, endangering the welfare of a child, and endangering the welfare of a physically disabled person.

In an interview last year, Vinluan, a naturalized U.S. citizen who emigrated from the Philippines in 1996, denied he encouraged the nurses to resign. Rather, he said, after hearing their complaints about substandard pay, poor living conditions, changes in work shifts and other alleged violations of their contracts, he "advised them that they could resign if they wanted to as their contracts were already breached."

In Thursday's ruling, Justice Eng pointed out that the nurses "did not abandon their posts in the middle of their shifts." Rather, he wrote, 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."

Eng also noted that the state Education Department ultimately cleared the nurses of professional misconduct after taking into account that "no children were deprived of nursing care."

Next, the judge turned to the role Vinluan played as an advocate.

"It cannot be doubted that an attorney has a constitutional right to provide legal advice to his clients within the bounds of the law," the judge wrote, citing Matter of Primus, 436 US 412, among others. Here, the indictment "seeks to punish Vinluan for providing legal advice, which he avers was given in good faith."

Since Spota did not dispute that Vinluan acted in good faith, Eng held, the attorney could not be prosecuted for giving legal advice to commit an act, which, under the circumstances, was not a crime.

"The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing," concluded Eng, adding that the prosecution of any matter potentially involving the disclosure of confidential attorney-client confidences as a defense "is an assault on the adversarial system of justice."

The court also prohibited Suffolk Supreme Court Justice Robert W. Doyle, who had rejected a motion to dismiss, from presiding over the matter.

Oscar Michelen, a partner at Sandback, Birnbaum & Michelen in Mineola, N.Y., who represents Vinluan, said he felt vindicated by the decision.

"We won," Michelen said in an interview Thursday. "It's a vindication for the nurses, certainly for the rights of attorneys and for the lawyers who represent people in the labor and health fields. This was a dangerous prosecution from the beginning."

Assistant District Attorney Leonard Lato represented Spota. Robert Clifford, a spokesman for Spota, could not be reached for comment.

Justices Fred T. Santucci, Daniel D. Angiolillo and Cheryl E. Chambers concurred in the decision.