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Attorney Cannot Be Prosecuted Over Bad Advice

Vinluian

Defendants Maria Theresa Ramos, left, Rizza Maulion, center and Felix Vinluan are seated in front of their attorneys James Druker, left and Oscar Michelen .

A lawyer facing criminal charges for advising 10 nurses they could quit their jobs at a Long Island, NY 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,” wrote Justice Randall T. Eng. “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.”

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

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.

Vinluan, after hearing the nurses’ complaints about substandard pay, poor living conditions, changes in work shifts and other alleged violations of their contracts, “advised them that they could resign if they wanted to as their contracts were already breached.”

Justice Eng pointed out 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.”

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.”

Since prosecutors 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.

Attorney Cannot Be Prosecuted Over Bad Advice by

  • Oscar Michelen

    As the attorney who represented Felix Vinluan in this case I must strenuously object to the wording of this article. Why do you call it “bad” advice? His advice was vindicated by the Appellate Division finding that the nurses had a right to resign. Nothing in the 13 page decision was negative towards Felix at all; the correctness and value of his advice was never called into question. So please explain to me what was bad about it and where did you get that it was bad advice?

  • Erik Even

    I think that if you actually read the article, you will see it does not say anywhere that the advice was “bad.”

    You’re referring to the title. The title is designed to get people to read the post. If the title was “Attorney Cannot Be Prosecuted Over Objectively Reasonable Advice,” no one would read the article.

    Although it is not a direct quote, it is clear that District Attorney Thomas J. Spota of Suffolk County thought the advice was “bad.” Hence the title.

  • Anonymous

    The title sets the tone for the story. “Bad advice” shouldn’t be anywhere in the title… no matter how much hairs you’d like to split or how much you’d like to cloud the article in favor of the nursing home… “bad advice” in the title was in poor taste and “bad judgment”

  • Anonymous

    If you think Vinluan didn’t give “bad” advice, don’t you think that at the very least he adopted “bad” strategy in filing a case in D.C. based on human rights violation instead of filing a case for damages in NY? His erroneous strategy (perhaps it can be attributed to the practice in the Philippines where lawyers turn to administrative courts instead of filing a civil case for damages) allowed Sentosa to be on the offensive and be the one to file the civil case against his clients as well as criminal cases. I understand the need to put a spin on Vinluan as a “martyr” but the facts remain that he erred in his legal strategy. If he filed the damages suit in NY first, his clients would not have been through the wringer.

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