Nurses have long been in short supply, which is why high volume users, like hospitals and nursing homes, have solicited nurses from the Philippines to come to America, the land of opportunity, and care for our sick.  Inducements were offered.  Promises made.  Sometimes, promises didn’t pan out as well as expected.

That was the case with the Filipino nurses recruited by Sentosa Care.  So they hired a lawyer, Felix Q. Vinluan, to represent them in their labor dispute.  Things didn’t turn out too well for the lawyer either.

In her Legal Currents column, published in The Daily Record, Nicole Black of Sui Generis, posts about Vinluan’s misbegotten representation of nurses, where he “advised” them to leave their employment at a nursing home. 

A consequence of their exodus is that certain patients, including some on ventilators, were left behind.  While no harm befell anyone, and the home found replacements quickly enough, Vinluan found himself in a new role.  Rather than labor lawyer, he was now a criminal law “ham sandwich,” meaning that he was indicted for his efforts.

“The grand jury … charges that … Felix Vinluan, with the intent that the defendant nurses engage in conduct constituting the crimes of Endangering the Welfare of a Child … requested and otherwise attempted to cause the nurses to resign immediately from Avalon Gardens.” — PARAGRAPH 18 OF THE GRAND JURY INDICTMENT INP EOPLE V. VINLUAN, I-769A-K-07

What, you may be wondering, was the alleged crime? Surprisingly, it appears Vinluan was indicted for advising the nurses, his clients, of their legal rights under an employment contract purportedly breached by the employer.

Of course, that’s not how Suffolk County District Attorney Leonard Lato [the same ADA as in the Marty Tankleff case] framed the issue. Rather, he claimed Vinluan actively participated in “soliciting” a group of nurses to, simultaneously and without advance notice, quit their jobs at a nursing home that housed a number of ventilator- dependent children and adults.

It seems rather ironic that Vinluan, who used the nursing home’s mission as a wedge to give his clients clout in their mass resignation ended up being indicted, certainly showing the District Attorney’s clout to chill lawyers inclined to similarly advise their clients. 

Was this stunt ill-advised?  Of course.  The nurses were contract employees, not at will, and had a professional duty that precluded their using patients as a weapon in a labor dispute.  But was the lawyer’s conduct criminal?  That’s a very different question.

There’s nothing to show that he affirmatively caused the nurses to walk out, as opposed to advising them on his belief that it was lawful for them to do so.  Mind you, the nurses, at the time, believed that the nursing home had already breached its contract to them, thus releasing them from obligation to their employer.

As Niki says this was just a ham sandwich job.  Vinluan committed no crime by advising his clients.  No patient was harmed.  Could they have been?  Possibly, but Vinluan’s representation was due the nurses, not the patients, and he never intended that any harm come to the patients.

But what of advising the nurses that it was lawful to leave their patients alone, without needed care, without incorporating into that advice the limitations of professional responsibility due the patients.  Is it necessary that a patient die before responsibility attaches?  Can the lawyer absolve himself from his advice simply because he viewed his services as part of a contract dispute, closing his eyes to the lives of patients who would be impacted by his advice?

When there are transcending duties that impact on the lives of others, it’s hard to analyze a situation like this by looking only at the attorneys very narrow focus.  Had it not been nurses, with patients dependent on their care, there would be no issue.  But they were nurses.  And the patients needed their care.  The fact that no one (fortunately) was harmed doesn’t change the recklessness of the conduct, if it was reckless at all.

I truly hate to add to the woes of a lawyer trying to best serve his client, even if his fault was myopia, but I think there may be greater validity to this prosecution than just another ham sandwich indictment.  Lawyers dealing with potentially life-threatening clients and situations need to look a little further than the end of their retainer check.  I have no idea whether Vinluan should be indicted and prosecuted, because there are many salient facts that remain unclear.  But I similarly can’t say that his conduct was outside the pale of criminal prosecution.  At least not yet.