nurse_pt1I read this post by Jeff Lipshaw from the Legal Profession Blog with great interest. This is especially so because our law office is currently handling almost the exact same kind of case. Lipshaw was discussing a recent Law Review article on the topic entitled: Lawyer’s Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass.

The abstract of that article, as quoted in the Legal Profession post is as follows:

Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep’t. Jan. 13, 2009).

This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be “profoundly disturbing.” The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.

I would add that in addition to the invalidity of the $25,000 liquidated damages charge that these type of nurses/physical therapists/etc. are typically subject to, these contracts usually provide that the employee must meet all of the ethical and good-care obligations of her profession. Very often, the health care assembly line operations that employ these immigrant health care workers force them to violate their own professional standards or face the $25,000 penalty for quitting. Such practices are thus not only unethical, they also constitute a breach of the very contract under which they seek to sue their former employees.

These are all factors to consider when an immigrant health care worker is seeking the advice of an attorney and considering quitting due to untenable working conditions.

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Elliot Schlissel, the founding partner of this firm has been operating a highly successful general practice law office for matters in the Five Boroughs of New York City, Nassau and Suffolk Counties for over 30 years. Through this blog, Mr. Elliot Schlissel will entertain general legal questions by e-mail and post a video response. If you have any question in a Criminal, Real Estate, Guardianship, Elder Law, Matrimonial or Family Court, Forclosure, Personal Injury, General Litigation or Wills, Trusts & Estates Matter, e-mail me with the question, and, if appropriate, Mr. Schlissel will post a video response on this site.

You can see one video about Mr. Schlissel by clicking on the image above or here.

It should be noted that the information provided will be for informational purposes only and that no attorney-client relationship is created.

handcuffsThe Jewish Week reportedthat in a criminal matter in Iowa, a Federal Magistrate, Jon Stuart Scoles, would not allow a Jewish defendant to be released on bail, essentially just because he is a Jew.

Under Federal law, (New York bail law is a bit different and is defined by the NY Criminal Procedures Law §530.20) bail can only be denied to a defendant if they pose a flight risk or pose a hazard to the community. The authorities cannot keep someone in jail before their trial for any other reason. Pre-trial detention is not a punishment, nor can it be, since everyone is presumed innocent until proven guilty at trial. However, the law does provide that if the person is likely to flee from the authorities, that person may be kept in custody solely for the purpose of ensuring that he/she still be around for the trial.

Some other parties the Federal authorities were after fled to Israel. The Judge in the case, when considering bail for the primary defendant, Mr. Shalom Rubashkin, cited the defendant’s Jewish identity as one reason he was denying bail. The judge wrotethat “[u]nder Israel’s Law of Return, any Jew and members of his family who have expressed their desire to settle in Israel will be granted citizenship.”

In my opinion, the judge’s rationale is not absurd. In a case of white collar crime, where there defendant poses no danger to the community, the only way bail can be denied is if the person poses a flight risk. Since in this case, the prosecutors claimed that other defendants had fled to Israel, and since any Jew may move to Israel and obtain instant citizenship because of Israel’s “Right of Return” law, it is reasonable to think that Mr. Rubashkin may pose a flight risk. My problem with his ruling is not that it’s irrational. It’s that it may be unconstitutional.

The constitution prohibits government action which treats different classes of people differently in the Equal Protection Clause of the 14th Amendment. The law must make natural distinctions and treat those classes of people differently. For example, the court treats people with a criminal record differently than those without a criminal record. But if the government treats different people differently based on their class membership because of certain unfair or prejudicial distinctions, those laws are subject to especially strict scrutiny by the courts.

Based on this judge’s ruling, he is making a distinction based on a defendant’s Jewish heritage, and treating him differently because of that. It is reasonable that any law that treats one differently because of their Jewish status would be immediately suspect because it meets the elements of an inappropriately discriminatory law. Those four categories are:

  1. The groups’ characteristics are immutable. (Race, national origin)
  2. The group shares a history of discrimination.
  3. The group is politically impotent.
  4. The group is a discrete and insular minority.

Distinctions based on one’s Jewish identity would seem to fall into this category. Rubashkins defense attorney did make this argument when pushing for bail, although this argument went unheeded by the judge.  It will be interesting to see how this ruling plays out and whether other judges will be begin denying bail to Jewish defendants on the same grounds.

Certainly, if any of our readers in New York find themselves in trouble with the law, they require a good attorney for not only the bail aspect of the case, but also for mounting  a vigorous defense in general. If that describes you or a friend, be in touch!

Update 1/17/09: Due to the severe blowback that resulted from the denial of bain in this case, a new bail hearing will be held.

Update 1/27/09: In the new bail hearing, bail was granted, and Mr. Rubashkin will go home until trial.

Picture courtesy of

sales-taxThe Channel Register is reporting that the New York Supreme Court (lowest level) threw out a lawsuit brought by and, challenging New York State’s new law, requiring that they start charging sales tax to their New York Customers. Here’s how they explain the new law:

…New York enacted a new tax law called the Commission-Agent Provision, which requires out-of-state retailers to collect and remit sales and use taxes if they have a commission agreement with an in-state resident based on the referral of customers (provided that resident earns more than $10,000 in revenues from New Yorkers).

A state cannot collect taxes and enforce that right against a company or person unless that person has “substantial contacts” with that state. That’s why, until recently, out-of-state, web or phone based sellers didn’t have to collect sales tax from customers in states other than the one in which they are based. But that all changes for New Yorker’s with the new law.  Amazon will probably appeal and since this involves constitutional issues, this could very well evenetually go up to the Supreme Court. Hopefully they’ll appeal so we can at least get a few more years of sales-tax-free Amazon purchases!

HT: Sui Generis – Picture courtesy of Town of Frisco, CO

drunk-driving1Newsday reported that a 24 year old woman from Ronkonkama, Long Island in Suffolk County allegedly drove drunk and killed a man in a motorized wheelchair who was riding on the shoulder of the road.

It’s obvious that she feels ashamed for what happened, based on the article.

Another 21 year old man was killed in Farmingdale in another drunk driving case.

Certainly, anyone charged with a DWI (Driving While Intoxicated) needs a good attorney.

environmental-testingWe have the following report, courtesy of Duanne Morris, LLP, posted at JD Supra:

New York has passed a law, effective December 3, 2008, which requires property owners and landlords to provide current and prospective tenants the results of environmental sampling conducted on the leased property [N.Y. Envtl. Conserv. Law (ECL) Section 27-2405]. The law requires notification of sampling results conducted on indoor air, as well as sub-slab groundwater and soil, when the test results exceed federal Occupational Safety and Health Administration (“OSHA”) or New York State Department of Health (“NYSDH”) indoor air guidelines. This law is intended to address the issue of vapor intrusion into tenant-occupied commercial and residential property in situations where contaminated soil or groundwater, located beneath a building slab or foundation, releases evaporated organic vapors that may enter and compromise the indoor air quality of any above grade enclosed structure.