Legal Malpractice

What's Worse than Legal Malpractice? Arrest

By (Andrew Lavoott Bluestone)

For an attorney, being sued is a traumatic event.  Ones advice and acts are being criticized, and a former client is claiming injury as a result of your professional work.  Not a good feeling.  What could be worse?  How about being arrested for giving advice to a client?

In this case, Vinluan v. Doyle, we see that the attorney defendant gave a group of nurses from the Philippines advice that they could resign.  He gave that advice based upon an analysis that the hospital had already breached their contract.

The New York Law Journal reports that attorney Oscar Michelen was successful in an Article 78 proceeding ending the prosecution.

The Appellate Division [and incidentally, the State Education Department) ultimately cleared the nurses of professional misconduct after taking into account that "no children were deprived of nursing care."  determined that     "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.

"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. 
 

From the NYLJ article: "In yesterday's ruling, Justice Eng pointed out that the nurses "did not abandon their posts in the middle of their shifts." Rather, he wrote, they resigned "after the completion of their shifts, when the pediatric patients at Avalon Gardens were under the care of other nurses and staff members."

Justice Eng also noted that the state Education Department ultimately cleared the nurses of professional misconduct after taking into account that "no children were deprived of nursing care."

Next, the judge turned to the role Mr. Vinluan played as an advocate.

"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." "
 

Full post as published by New York Attorney Malpractice Blog on January 19, 2009 (boomark / email).