Tuesday, January 20, 2009

Mitch Rubenstein on the Lawyer's Worst Nightmare

Mitch Rubenstein, editor of our sister blog, Adjunct Law Prof Blog, has posted on SSRN an article published in the Northwestern U. L. Rev. Colloquy,  Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass.  Here's the abstract:

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.

[Jeff Lipshaw]

http://lawprofessors.typepad.com/legal_profession/2009/01/mitch-rubenstei.html

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Comments

Fortunately, the Appellate Division recently reversed the lower court. Still, the case is disturbing.

Posted by: Doug Richmond | Jan 20, 2009 1:55:10 PM

In addition to Prof. Rubenstein's point about the $25,000 "liquidated damages clause" really being more of a penalty, I pointed out another problem (one of several) with these immigrant health care worker contracts in this post: http://schlissellaw.wordpress.com/2009/01/21/attorney-representation-of-badly-treated-immigrant-para-medical-workers/

These contracts typically require that the health care worker observe all of the ethical obligations of his or her profession. However, the environment and extreme pressure to churn through as many patients as possible frequently make it virtually impossible for these people to treat their patients in a way that is remotely ethical and in connsonance with their profesional and legal obligations as health care workers. Since the employment contract demands that the employees maintain their professional ethical standards, the employer's act of forcing the employee to violate those standards put the employer in breach of contract as well, even before the employee quits. Furthermore, I would (and did) argue that such contracts should be void because they are in violation of public policy.

Posted by: Benjamin Wolf | Jan 21, 2009 11:40:53 AM

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