In a stunning victory, Mineola criminal defense lawyer Oscar Michelen prevailed before the Appellate Division, Second Department in having the indictment thrown out against labor lawyer Felix Vinluan for advising 10 Filipino nurses who had been fraudulently induced to come to the United States to work for a SentosaCare nursing home. 

The nurses retained Vinluan to represent them after the promises made to them in order to get them to come to the United States to work for SentosaCare were quickly forgotten, and they were subject to abusive working conditions.  The indictment claimed that Vinluan conspired to cause the nurses to walk off the job, leaving patients, including children, without case.  As it turned out, and as Felix and Oscar were kind enough to bring to our attention, this was absolutely false, the nurses having waited until the end of their shift to leave their jobs, when other nurses were there to maintain continuity of care.  No patient, and certainly no child, was ever put at risk.

Oscar took the highly unusual step of bringing a writ of prohibition to the Appellate Division, which stayed the prosecution.  From Law.com, the Second Department decision in Matter of Vinluan v. Doyle was finally issued,

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.

This is a huge smack in the face of Suffolk County District Attorney Thomas Spota, having taken the position that he was entitled to indict attorneys for giving advice with which he disagreed.  As the court held:

“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.”

In the scheme of prosecutorial abuse of authority in an effort to chill an attorney’s ability to advise clients to take action against governmental or powerful corporate interests, this decision is huge.  In exceptionally strong language, it makes clear that lawyers are protected from prosecution for providing good faith legal advice to clients, and that overreaching prosecutors cannot punish lawyers because they disagree with the advice.

As an added note, the Second Department prohibited Suffolk Supreme Court Justice Robert W. Doyle, who had denied Oscar’s motion to dismiss, from presiding over this matter, making him the latest in the string of Suffolk County Supreme Court justices to be overturned and taught a firm lesson that they don’t work for the prosecution.  Ironically, the assistant on the case was Leonard Lato, the same prosecutor who fought vociferously to keep Marty Tankleff in prison despite overwhelming evidence that his conviction was irreparably tainted.

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.”

You bet it’s a vindication.  Congratulations to Oscar Michelon for a job superbly done.  And Lato, on the other hand, couldn’t be reached for comment.  Finally, he’s figured out that it’s best to keep his mouth shut.  One has to wonder when the next time Spota, Lato and the fine judges of Suffolk County will step in their own excrement again, or will they finally learn a lesson from this crushing defeat that indictments are toys to keep their enemies in line.

Update:  I’m not sure how this slipped by me, but Eugene Volokh posted about this decision before me, with particular interest in the 13th Amendment aspect.

[T]he indictment handed down against the petitioners explicitly makes the nurses’ conduct in resigning their positions a component of each of the crimes charged. Thus, the indictment places the nurses in the position of being required to remain in Sentosa’s service after submitting their resignations, even if only for a relatively brief period of notice, or being subject to criminal sanction. Accordingly, the prosecution has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will. The imposition of such a limitation upon the nurses’ ability to freely exercise their right to resign from the service of an employer who allegedly failed to fulfill the promises and commitments made to them is the antithesis of the free and voluntary system of labor envisioned by the framers of the Thirteenth Amendment. While we are, of course, mindful that protecting vulnerable children from harm is of enormous importance, the fact that the prosecution may serve a legitimate societal aim does not suspend the nurses’ constitutional right to be free from involuntary service.

While my focus was on Vinluan’s indictment for advising the nurses, it’s always good to remember that involuntary servitude is unconstitutional, even in Suffolk County, New York.  For those of you who are not resident on Long Island, you may be surprised to learn that this will come as a shock and disappointment to many around here, who firmly believe to the contrary.

Update 2:  Looks like Mike at C discovered the decision too, though apparently all previous news and commentary slipped under his radar. (H/T Walter Olson)