Medical records illegally obtained by prominent SLO attorney, lawsuit claims

Prominent San Luis Obispo County defense attorney Ilan Funke-Bilu is facing allegations he illegally sought, and received, confidential medical records of an alleged sexual assault victim.

The woman is suing Funke-Bilu and Community Action Partnership-San Luis Obispo County (CAPSLO), demanding an unspecified amount for damages, attorney fees and the costs of the suit. Funke-Bilu is representing the man accused of raping the woman.

According to the complaint, Funke-Bilu improperly sought and received the woman’s confidential medical records “containing (the woman’s) sexual health information,” from the Center for Health and Prevention, a division of CAPSLO.

According to the California Victim’s Bill of Rights, defense attorneys are not entitled to confidential information or records “which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.”

Lee Cunningham, spokesman for the San Luis Obispo County District Attorney’s Office, said rape victims’ sexual and medical histories are not released to defense attorneys without a court order.

“Generally speaking, victims’ sexual history is not admissible, and so we wouldn't release it,” Cunningham said.

Though Funke-Bilu received a 45-page document detailing the woman’s medical history, Judge Jacquelyn Duffy ordered the document destroyed and ruled its contents would not be admissible at trial.

“The criminal defense nonetheless still has knowledge of what plaintiff’s confidential medical records actually contains, which information was never any of their business,” according to the complaint.

In response to the lawsuit, Funke-Bilu defended his actions.

“I don’t think it’s a crime to ask for anything when fighting for your client. It’s my obligation to fight for my client at every peril,” he said. “To do anything less would have been a dereliction of duty on my part.”

Funke-Bilu said there’s no law that says he can’t ask an agency for information, regardless of whether they can lawfully comply with that request.

“If the clinic gives me records, it’s not like I put a gun to their head,” he said.

Funke-Bilu said the fault doesn’t lie with CAPSLO or himself but with the attorneys who filed the complaint, Robert Bettencourt and Joseph Bussone. Funke-Bilu said he has “grave doubts” about “the competency of the attorneys filing this case.”

Funke-Bilu accused Bettencourt of pursuing a vendetta stemming from a 2014 judgment that found Bettencourt provided ineffective assistance of counsel to a client, who was later represented by Funke-Bilu.

Bussone, speaking for his partner, Bettencourt, disputed Funke-Bilu’s claim.

“This has nothing to do with a vendetta,” Bussone said. “I wouldn't be involved in anything like that. I have no vendetta against Mr. Funke-Bilu, and I'm somewhat shocked about his statements (in the media) about him being prideful of him violating the law.”

Funke-Bilu said requesting medical records is something frequently done by prosecutors.

“I can’t tell you how common it is for agencies to provide prosecutors courtesy copies,” he said.

Bussone disputes that claim.

“He’s not entitled to it without a court order, and he didn’t get one. It’s really that simple,” Bussone said.

Jane Pomeroy, associate director of RISE San Luis Obispo County, a sex assault victim advocacy group, said it’s important to leave a victim’s sexual history out of sexual assault or harassment cases.

“It lends itself to the myth that somebody who may be considered promiscuous or is sexually active could be asking for an assault,” she said, “or that somehow her or his behavior can contribute to victimization.”

This story was originally published June 27, 2017 at 3:13 PM with the headline "Medical records illegally obtained by prominent SLO attorney, lawsuit claims."