This week's Legal Currents column, which is published in The Daily Record, is entitled " Indicting a Ham Sandwich" The article is set forth in full below and a pdf of the article can be found here. My past Legal Currents articles can be accessed here.
Indicting ham sandwiches
“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.” — PARAGRAPH18 OFTHEGRANDJURY INDICTMENTINPEOPLEV. VINLUAN, I-769A-K-07
In 2006, New York attorney Felix Q. Vinluan, at the behest of the Philippine consulate, met with a number of Philip- pine nurses working in the United States.
As a direct result of that meeting, Vinluan and 10 of the nurses were indicted by a Suffolk County grand jury.
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 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.
As is the case with most contract disputes, there are two sides to the story. Disputes of this nature generally are resolved when the trier-of-fact determines which version of events is more closely associated with the ever-elusive “truth.”
Unfortunately, this particular civil dispute resulted in the far more unusual and ominous outcome of the criminal indictment of the employees’ lawyer for providing his legal opinion, simply because that opinion had the potential to negatively impact the lives of others — in this case the nursing home’s patients.
No actual harm resulted, since replacement nurses were obtained. In fact, the New York Department of Health recently concluded the nursing home residents were in no way jeopardized by the mass resignation.
Despite that fact, criminal charges are pending against Vinluan, in yet another example of the increasing trend to criminally prosecute alleged civil wrongs. It seems many prosecutors have yet to grasp the concept that adverse consequences need not always result in criminal prosecution.
The case brings to mind an even more shocking prosecu- tion that occurred in New Orleans in the wake of Hurricane Katrina, when a physician and a number of nurses were indicted based on allegations that they hastened the death of critically ill patients.
The physician and nurses faced a situation unlike any other following the hurricane and breech of the levies. There was no running water, minimal contact with the outside world, supplies were running low and expected rescue efforts were few and far between. The physician made a discretionary decision to reduce the suffering of some of the most ailing patients, and later faced criminal charges for her decision.
Former New York State Court of Appeals Judge Sol Wachtler famously quipped that, at the urging of a good prosecutor, a grand jury “would indict a ham sandwich.”
In the New Orleans case, the grand jury recognized a sandwich is just a sandwich. Sadly, Vinluan was not so lucky.
--Nicole Black is, among other things, a Rochester, NY DWI defense lawyer, and is of counsel to Fiandach & Fiandach, one of the largest and most experienced DWI defense firms in New York State. She also co-authors the Thomson-West book Criminal Law in New York and writes a weekly column, "Legal Currents", for The Daily Record.