I wrote about  this strange case back in March, where the Suffolk County District Attorney indicted an attorney, Felix Q. Vinluan, for allegedly advising 10 Filipino nurses to quit their jobs at a nursing home in the middle of a shift, thereby putting the home’s residents at risk.

At the time, the ADA handling the case contended that Vinluan hadn’t merely advised, but actively solicited that they abandon their patients.  It was this claim of active involvement in pushing for abandonment that Leto claimed was the reason for the indictment.

Well, Lato, the seasoned assistant who handled the Marty Tankleff fiasco with an iron fist, just got smacked hard by the Appellate Division, that granted a stay of the criminal proceedings pending the hearing and determination of a Writ of Prohibition, according to Newsday.

The Appellate Division’s temporary stay means the nurses will not face trial as scheduled on April 28 in Suffolk County Supreme Court, attorneys said. The court’s four-judge panel will decide whether the prosecution breaches federal labor law and free speech and anti-slavery amendments to the Constitution.

For those unfamiliar, the issuance of a Writ of Prohibition is only slightly more rare than the appearance of Haley’s Comet.  This never happens. 

The case was scheduled for trial on April 28th, and for now it’s going nowhere other than Monroe Street in Brooklyn.  While not a guarantee that the writ will be granted and the indictment tossed, it is certainly demonstrates that the Second Department is taking the defense’s arguments very seriously, and that they see them as having at least a strong chance of prevailing.

The prosecution of the nurses, aside from their attorney, was one that raises troubling questions of involuntary servitude.  Can it be a crime to walk away from a job, for if it can, and an employee cannot walk away lest he commit a crime, then has he not become a slave to the job?

But the prosecution of Vinluan, the attorney who advised the nurses, is another matter altogether. 

After I posted about this story in March, I received an email from Felix explaining what happened further.  Here’s what Felix Vinluan had to say:

I just read your blog entitled “Lawyer’s Labors Result in Indictment” posted on March 4, 2008.I am the lawyer referred to in your blog. The immigrant nurses were indeed contract employees.But not of Avalon Gardens – the facility where they found themselves designated to work at.They were contract employees of other nursing home facilities that sponsored them through the immigration process and that promised them direct-hire employment.The nurses entered into three-year employment contracts with their respective sponsoring employers.None of these indicted nurses entered into any employment contract with Avalon Gardens.Upon their arrival in New York, their recruiter, who happened to be working for a nursing employment agency called Prompt Nursing Employment Agency, d/b/a Sentosa Services, told them that there were no jobs available with their respective sponsoring employers, but that he could give them employment through Sentosa Services. 

The nurses were made to sign employment application forms with Sentosa Services, and were thereafter directed to work at Avalon Gardens.Their salaries were paid by Sentosa Services, which also issued them their Form W-2s.They were issued badges identifying them as “Agency nurses”.Whenever they had concerns or issues at Avalon Gardens, they were told to communicate their concerns to their agency.Thus, when these nurses came to seek legal consultation, I advised them that their employment contracts had been materially breached by their respective contracting employers, as these employers did not provide them any employment.I likewise advised them that as aggrieved parties to breached contracts, they could deem their contracts as having been voided. Further, considering the totality of their employment arrangements with Sentosa Services, they were actually employed by this nursing agency.And there being no employment contract between any of the nurses and the nursing agency, they were at-will employees, and could terminate their services anytime, in the same way that they could also be terminated by Sentosa Services anytime.

I did not view my legal services as simply part of a contract dispute.For in addition to advising these nurses about their immigration and contractual rights, I also advised them about their responsibilities as nurses, especially about the NYSED regulations on patient abandonment.I advised them that if ever they would resign, they should not resign in the middle of their shifts.It would interest you to know that even before the criminal investigation was begun by the Suffolk County District Attorney’s Office, the NYSED Office of Professional Discipline already found that the nurses were not liable for patient abandonment and that there were no moral character issues that would prohibit the issuance of their nursing licenses or permits.In fact, the nurses’ collective action in resigning after their concerns were not properly addressed by their agency and the facility they worked at was clearly a protected labor activity under the National Labor Relations Act, as amended.

It is my contention (as well as the nurses’) that the cases (civil cases for alleged breach of contract, pending before the Nassau Supreme Court; the administrative cases, that were already dismissed by the NYSED; and the criminal cases, pending before the Suffolk Supreme Court) filed against the nurses and me are but retaliatory action on the part of the politically-influential owners and lawyers of the Sentosa Enterprise to give notice to other immigrant nurses victimized by their pattern of fraud and misrepresentation in the immigration process that if they complain, they would suffer the same fate as well.More immigrant nurses would have come out to expose the fraud in the immigration process had Sentosa not begun its retaliatory actions.These cases likewise give warning to other lawyers not to represent these nurse-victims, because if they do and advise these nurses that they could resign, as I did, then they would also be made “ham sandwiches”.Newsday, last September 2007, published a two-series investigative report about the political clout of Sentosa’s operators and lawyers.  

Lawyers groups, such as the NY State Defenders Association and the National Employment Lawyers Association – NY, have openly come out to support me, and have asked Governor Spitzer to appoint a Special Prosecutor.But what about other bar associations?

May these remarks serve as a challenge to fellow lawyers to take a bold stand and denounce what is clearly an attack against the practice of our noble legal profession.It is my hope that lawyers still believe that ours is a country where the rule of law, and not the rule of men, reigns, and where disputes are won on the merits of the case, and not on who a party knows.

Thank you.

Felix Q. Vinluan

And that, ladies and gentlemen, is why we have courts.  It’s unfortunate that the Suffolk County judges can’t seem to find their way to the right side of any of these cases, though.  And where is the NYSACDL on all this?  Too busy struggling with how to cover their butts in their own mess to stand behind Felix Vinluan for this improper indictment?

UPDATE:  From the New York Lawyer,

But in a statement the lead prosecutor, Leonard Lato, said the stay is not “precedent setting” and such stays are “usually granted.”

Lato failed to respond when asked, “On what planet?”