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NY Attorney Faces Criminal Charges for By Vesselin Mitev New York Lawyer New York Law Journal February 26, 2008 A lawyer who advised 10 nurses that they were free to quit their jobs at a Long Island nursing facility now faces 13 criminal charges as a result of the nurses' walkout - a prosecution his supporters say could have a chilling effect on attorneys who represent workers in labor disputes. "I am really surprised that I am a defendant in this criminal case," Manhattan-based Felix Q. Vinluan, 43, said during a recent interview, his voice cracking with emotion. "I was just doing my job." However, the Suffolk County District Attorney's Office claims that the nurses endangered five chronically ill children and one terminally ill man when they left their posts without giving sufficient notice to administrators to find replacements. Assistant District Attorney Leonard Lato said in an interview that Mr. Vinluan was indicted along with his clients because he did more than just advise his clients of their rights. "Mr. Vinluan was an active participant in soliciting [the nurses] to do what they did," Mr. Lato said in an interview. "If all Mr. Vinluan did was advise, rather than 'encourage,' he wouldn't have been charged." On April 5, 2006, at the request of the Philippine consulate, he met with nurses who had been working for Avalon Gardens Rehabilitation and Health Care Center in Smithtown. The facility is one of a group of nursing homes operated by SentosaCare, which actively recruits nurses in the Philippines. Mr. Vinluan is a naturalized U.S. citizen who emigrated from the Philippines in 1996 and was admitted to the New York bar in 1998. The nurses, who had been in the country since 2005, complained to Mr. Vinluan about substandard pay, shabby living conditions, changes in work assignments and other violations of their three-year contracts. "I advised them they could resign if they wanted to as their contracts were already breached," said Mr. Vinluan. "I told them 'you are at-will employees and you can be terminated at any time, [so] in the same way you can terminate your employment.'" "He adamantly denies telling them to resign," said Oscar Michelen, a partner at Sandback, Birnbaum & Michelen in Mineola, who is representing Mr. Vinluan. "He told them they could resign." Three of the nurses named in the indictment - Harriet Avila, Claudine Gamiao and Juliet Anilao - also denied in an interview that Mr. Vinluan encouraged them to quit. "He just told us our rights," said Ms. Anilao, who works at Parkway Hospital in Queens. along with Ms. Gamiao and Ms. Avila. "When we came here we didn't even know what rights we had." According to the district attorney's office, on April 6, Mr. Vinluan filed a discrimination complaint on behalf of the nurses against Avalon Park and SentosaCare at the U.S. Department of Justice in Washington, D.C. Late in the afternoon of April 7, the nurses who had met with Mr. Vinluan submitted their resignations In September 2006, the state Education Department, after two hearings, rejected SentosaCare's complaints that the nurses had abandoned patients. According to the New York Times, a Health Department review concluded in January that shifts had been covered. Nevertheless, on March 22, 2007, a grand jury indicted Mr. Vinluan for participating in a conspiracy to obtain "alternative employment" for his clients and a release from their three-year commitment "without incurring a financial penalty of $25,000" provided in their contracts for breaching the agreement. Mr. Vinluan and the nurses each were charged with a single count of conspiracy in the sixth degree, five counts of endangering the welfare of a child, and six counts of endangering the welfare of a physically disabled person. In addition, Mr. Vinluan was charged with solicitation in the fifth degree. That offense is aimed at defendants who, with intent that another person commit a crime, "solicits, requests, commands, importunes or other attempts" to cause that person to commit the crime. If convicted of the charges, all misdemeanors, defendants face a maximum penalty of one year in jail. Mr. Vinluan and the nurses also could lose their licenses. Breach of Duty? Mr. Lato said that the nurses "had every right to quit their jobs, but when you are a nurse or a doctor you owe the patients just a little bit more," he said. He acknowledged no one was injured as a result of the resignations. But he said that the abrupt resignations set off a four-hour period of "panic and scrambling" as administrators tried to find replacements to cover the shifts of the 10 nurses. Initially, Mr. Lato said he did not believe the case merited an indictment. He said that he interviewed Mr. Vinluan and several of the nurses, and "they seemed like hardworking, good people," he said. But "when I went into the nursing facility and I saw the children - I'd never seen children on ventilators - my feelings changed about the case," he added. After that, Mr. Lato said he decided to leave it up to a grand jury to determine if the mass resignations represented a crime or a labor dispute. He asked the grand jurors to determine whether the nurses had a duty to the patients and whether they "put people in danger" by breaching that duty. They answered in the affirmative. Simply giving more notice would have avoided charges altogether, he said. "Twenty-four-hour notice would have been more than sufficient - even 9 a.m, that morning," he said. "Whatever the dispute was there was a collateral consequence to what they did." Both the nurses and Mr. Vinluan filed motions to dismiss. The nurses' attorney, James O. Druker's Kase & Druker, argued that the criminal charges violated the Thirteenth Amendment to the federal Constitutiont, which prohibits slavery and indentured servitude. "I never thought that in all my years of practicing law I would use the Thirteenth Amendment to argue a labor dispute," Mr. Druker said. "I have no doubt that even if the nurses resigned in concert, as the D.A. says, that is not a crime, there is no crime here - the obligation to properly staff the facility is on the facility." However, Supreme Court Justice Robert W. Doyle, in a Sept. 28 decision, rejected that argument. "Under no view of the facts of this case could it be said that the People were seeking to compel defendants continued employment by any particular entity," wrote the judge in People v. Jacinto, Indictment No. 00769-07. Rather, he held that there was "sufficient evidence" to conclude that the nurses should be charged with "specific crimes for the actions taken by them, en masse, at a time when they were entrusted with the care of certain physically disabled children." In a separate motion to dismiss the charges against Mr. Vinluan, Mr. Michelen argued that there was insufficient evidence to demonstrate that Mr. Vinluan intended to endanger someone's welfare. However, the judge said the indictment against the attorney was backed by "ample evidence." "While a nurse may, oftentimes, have a right to unilaterally resign from his or her position of employment, the actions of these defendants, acting together with forethought and planning, was not a simple resignation from a nursing position," wrote the judge in People v. Vinluan, Indictment No. 00769A-07, noting that the resignations "could have had disastrous consequences." The trial has been scheduled for April 28. To prevent it from going forward, Mr. Michelen plans to file today with the Appellate Division, Second Department, a writ of prohibition under Article 78 of the CPLR. He claims in the petition that the nurses' actions were part of a labor dispute over which the National Labor Relations Board has sole jurisdiction. Political Influence? Mr. Vinluan said he believes he has been targeted by a company that cannot afford to lose its pool of Filipino nurses. In total, 37 nurses quit their jobs at SentosaCare facilities on April 6 and April 7, although only 10 face criminal charges. And he claims that the case has been tainted by the political influence of the nursing homes' owners. "What better way to stop other nurses than having their lawyer silenced by being made a party defendant," he said. "It is just unfortunate that politicians have become complicit participants in these unethical recruiting practices." Both Messrs. Druker and Michelen have asked Governor Eliot Spitzer to appoint a special prosecutor in the case. In support of that request, Mr. Michelen pointed to what he called a "secret meeting" between Suffolk County District Attorney Thomas J. Spota and SentosaCare's attorney, Howard Fensterman, managing partner of Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger in Lake Success. "This took place a year after [the nurses] stepped down," said Mr. Michelen. "There was no immoral conduct, no patient abandonment - we think political influence is what caused this investigation to occur." According to Newsday, SentosaCare partners, allied investors and Mr. Fensterman have donated $750,000 to Democratic and Republican campaign funds. Mr. Fensterman contributed $1,500 to Mr. Spota, the district attorney, in 2003. Mr. Lato dismissed the suggestion that the prosecution represented political payback. He said that, as a public official, Mr. Spota often meets with attorneys. "It happens all the time; it is commonplace [for Mr. Spota] to grant an audience," he said. Mr. Fensterman said that he had developed "some credibility" with the district attorney when he asked the prosecutor to look into another case. He said he had contacted Mr. Spota after the resignations to examine what he regarded as a "very serious" matter. "When he listened to that story he said he would evaluate it and he would determine what he wanted to do," he said. "The facts warranted a six-month investigation and they concluded that it warranted the impaneling of a grand jury and [Justice] Doyle found there was enough there to convict." SentosaCare is also seeking damages of at least $25,000 each from the 37 nurses who quit their jobs, including the 10 Indicted defendants, who left their jobs with SentosaCare. "The reason why the civil suit was brought is because the nurses abruptly walked out without notice placing all of these patients in danger - they all breached their contracts," said Mr. Fensterman. "It was all orchestrated by the attorney Felix Vinluan; we believe his intention was to cripple the nursing home[s] by doing this in a 24-hour period." Mr. Fensterman charged that Mr. Vinuluan is "politically connected" in the Philippines and owns his own employment agency there. After the resignations, he said that Mr. Vinluan used his influence to orchestrate an investigation of his competitor, SentosaCare, which led to the suspension of its recruiting activities. Senator Charles Schumer, D-New York, wrote four letters to officials in the Philippines, including one to the country's president, seeking a review of the suspension. That review cleared SentosaCare of any wrongdoing, said Mr. Fensterman. The suspension was lifted in June 2006. Mr. Fensterman served as Mr. Schumer's Long Island finance chairman in 2001 but called the notion that SentosaCare benefitted from political influence "frivolous." Mr. Vinluan said that he has an immigration consulting business in Manila but does not own any employment agencies in the Philippines. However, he said that he "might have incorporated companies in the Philippines where I might have been made a nominal owner/initial corporate secretary," and those companies "might have done recruitment business without my knowledge." Support for Defendant Several groups, including the New York State Nurses' Association, the Asian American Legal Defense and Education Fund and the New York State Defenders Association have expressed their support for the defendants and their request for a special prosecutor. "It's absolutely troubling," said Kenneth Kimerling, the fund's legal director, said in an interview of the charges against the attorney, "Lawyers are often asked to provide advice for clients about taking certain actions. It seems rather extreme in this case to go after an attorney who told his clients they had a rational legal basis to resign." The New York chapter of the National Employment Lawyers Association also recently submitted a petition to the governor backing a special prosecutor in the case. "To the extent that a lawyer is being held criminally responsible for advising his clients to resign on a contract that was essentially breached by [Sentosa] is fairly outrageous," said William D. Frumkin, a partner in White Plains-based Sapir & Frumkin, who heads the New York chapter. Mr. Frumkin also noted that should Mr. Vinluan be convicted, "attorneys would have to be careful in choosing who they represent," which would be "in opposition to people having a right to counsel." The governor's office is reviewing the request for a special prosecutor, a spokesman said. Meanwhile, Mr. Vinluan, who appeared at an interview in an olive green suit and a tie emblazoned with law books, said he has put his practice on hold until the case is settled. "I would like to avoid a trial. I would like to take care of this criminal case. For me to start a practice now would be unfair to my clients." Mr. Vinluan, who said he underwent a quadruple-bypass shortly before the indictment, said his health is deteriorating as the trial date draws near. Mr. Michelen predicted dire consequences should Mr. Vinluan be convicted. "No one will ever give labor advice to health care workers again," he said. "That's not a grandiose statement - that is a fact."
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