California License Law Blog : California License Lawyer & Attorney : Fredrick M. Ray Law Firm : Professional Licensing Revocation & Suspension : CA License Law Blog

The California Medical Board mandates the disclosure of felony charges (after an information has been filed in criminal court) and all misdemeanor convictions.  Also, through the California Department of Justice or the criminal courts, the Board sometimes is notified of a pending or completed criminal case.  Physicians also must answer background change questions (such as, have you been convicted of a crime?) on their license renewal forms.  Through one of these channels, the Medical Board typically becomes aware of a pending or completed criminal case that can trigger discipline.

Make Good Decisions from the Start of the Problem

To exercise effective damage control from the early days of the criminal matter, I strongly recommend having a license law attorney on one's legal team.  A license law attorney brings a long-term perspective of potential future license consequences that can educate the criminal defense attorney and his client.  One of the biggest mistakes that physicians make is to fail to appreciate the serious fallout and lasting career damage that can result from a criminal investigation or prosecution.

Documenting and Preserving Mitigating Information

One often missed step, important for successful handling of potential license problems, is to document and preserve mitigation evidence.  Mitigation evidence is evidence that tends to explain or provide a context for the alleged wrongful act to cast it in a more sympathetic, reasonable and understandable light.  Examples of mitigation evidence are a tragic life event, something that causes extreme stress such as the death of a parent or child, a bitter divorce, a severe illness, or extreme financial hardship.  Without important contextual information, the Board might assume that the criminal matter gives telling insight into the personal flaws of the Board's licensee from which the Board can generalize and make broader assumptions.

Criminal Defense with License Consequences in Mind

Criminal defense lawyers often focus upon the final conviction charge (case outcome) in attempting to minimize adverse effects on a physician's license.  This emphasis is too narrow and usually  misplaced.  If there is any conviction of a felony or misdemeanor, the Board can look through the conviction to the underlying facts.  Therefore the contents of the investigative reports, the rulings of the judge on issues such as bail or protective orders, the length and conditions of probation, and negotiated post-conviction relief, are all aspects of the case which have an impact upon whether the Board will seek discipline against a license, and what the disciplinary case outcome might be.

Early and Proactive Rehabilitative Efforts

Another often missed opportunity is the chance to make early and proactive rehabilitative efforts.  If the Board decides to discipline a physician's license, once a conviction is proven at hearing, the burden shifts to the licensee to show rehabilitation to enable the Board or administrative law judge to decide what, if any, discipline is appropriate.  Rehabilitation evidence is critical because the Board justifies discipline based upon criminal convictions by reasoning that criminal convictions show a character flaw, a lack of judgment, or impairment that endangers the public, depending upon the facts of the case.  To the degree that a physician can show the issues in the criminal case have been addressed or resolved by rehabilitative efforts, the justification for discipline may be reduced or removed, resulting in a better discipline case outcome, or perhaps even a case dismissal.

What Types of Cases Trigger Discipline

Unremarkable misdemeanor convictions that do not point to troubling concerns about the licensee are the most likely to not result in license discipline.  These would include low blood alcohol drunk driving cases, disturbing the peace based on loud noise or a fight between adults, some types of disorderly conduct, and misdemeanor Vehicle Code cases.  Criminal cases that are likely to trigger discipline are ones that point to drug or alcohol abuse, have facts that show or hint at mental illness, any type of theft or fraud, any violent crime, and any sex crime, to name some major categories.  Sexual offenses that result in conviction and mandated sex offender registration can trigger immediate license revocation.  To make a reasonable assessment of the potential Board reaction to a particular factual scenario, it is best to hire a license defense law firm to review the matter.  We offer consultations to review criminal matters to assess them for likely licensing outcomes, to identify mitigation evidence early and to build a rehabilitation case. 

Be Honest

It is crucial that a physician never lie to the Medical Board about a criminal case.  Direct dishonesty is typically more damaging than the criminal case itself.  I strongly recommend that the physician have an attorney review all their communications with the Board before they are sent, if for no other reason than to ensure that the information provided is accurate and that the exchanges are well documented.  The early involvement of a license defense attorney can ensure an honest, positive and consistent message that reassures the Medical Board and acts to prevent or minimize license discipline.

Medical Students, Medical Residents and Physician License Applicants

These principles apply to anyone applying to medical school, attending medical school, working in a medical residency, applying for a PTAL (foreign medical school graduate's residency permit) or seeking a California physician's license.  The earlier the issue is addressed, the better.  If the background problem is so serious that it will jeopardize the physician's licensing process, the problem must be identified early so that the individual can consider options and plan for overcoming impediments to obtaining a full clear physician's license.

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In California, the Office of Administrative Hearings (OAH) hears all professional license discipline or denial cases, except for liquor license and attorney discipline hearings.  The same administrative court hears cases for such varied occupations as physicians, architects, dentists, insurance brokers and engineers.  A panel of about 75 administrative law judges (ALJs), working our of four OAH offices in Sacramento, Oakland, Los Angeles and San Diego, hears thousands of cases each year.  Administrative licensing agencies such as the Medical Board of California, the Dental Board of California and the Department of Insurance delegate the job of hearing disciplinary hearings to these judges, while retaining final decision-making authority.   

When a licensing agency issues an accusation (the start of a formal disciplinary case) or a statement of issues (a formal license denial case), and the licensee has requested a hearing, the case is typically filed with OAH for adjudication.  Once OAH receives the filing, it assumes jurisdiction over the case which continues until the case is settled, the accusation is withdrawn, or a panel judge issues a proposed decision.   The presiding judge of a particular OAH office, or an ALJ acting temporarily on her or his behalf, addresses any logistics issues that arise.  Before the hearing date itself (the trial to decide the case), a hearing judge is assigned.  However, the assigned judge can be changed even shortly before the start of the hearing.

A hearing can be held at one of the courtrooms available at one of OAH's offices, or sometimes in a remote location (typically a borrowed conference room in a state or federal building) for the convenience of the parties or witnesses.  Occasionally, a party or witness, complying with applicable rules and with the agreement of the parties, appears by telephone.  I have seen an OAH hearing held in a state mental hospital, a federal office building, and even at a prison.  As long as a quiet room with adequate seating and tables is available and a court reporter can get to the location, it can be used for an OAH hearing.

OAH is different than any other court in that OAH is a state agency that other state agencies hire to hear their cases.  ALJs produce "proposed decisions" that can be adopted, changed or rejected then decided differently by licensing agencies.  Although a very high percentage of proposed decisions are adopted as written, occasionally a decision is rewritten or even decided differently by the agency.  Therefore, for ALJs to do their job, they must be "in tune" with the agencies for whom they decide cases.  Licensing agencies issue disciplinary guidelines to guide ALJs to decide cases consistently on common fact patterns, however, in reality most disciplinary guidelines are not specific enough to provide clear guidance.  It is definitely an art for a judge to intuit the wishes of a distant licensing board or agency head to reach a decision consistent with the agency's own thinking.

Having seen hundreds of ALJ decisions adopted or rejected by agencies, patterns tend to form.  For agencies particularly that have a high volume of cases or an elected agency head, a higher percentage of decisions seem to be adopted.  If many decisions are rejected, the burden of deciding those cases upon the administrative agency would be great.  Agencies with relatively few disciplinary cases can review them with greater care and more easily reject or modify those decisions.  Also, in the case of some agencies, the agency may prefer to leave the burden of the decision upon the ALJ, who is not subject to political pressure or public scrutiny, rather than to alter the decision to have a greater hand in the decision.  

For self-represented litigants (individuals without an attorney), and inexperienced attorneys as well, a common mistake is to think that OAH proceedings are just informal meetings.  Indeed, these are trials that require pre-planning and organization, legal research, questioning of witnesses, objections to evidence, and arguments.  The primary "law firm" that prosecutes cases at OAH, the California Department of Justice, has hundreds of well trained Deputy Attorneys General.

OAH decisions are often published on the internet by the particular licensing agency for whom cases have been heard.  I strongly advise unrepresented litigants to search out those decisions to review them before deciding to proceed without an attorney.  It is not uncommon that administrative decisions are 10, 15, 20 pages or more, discussing a range of factual and legal issues.  Reviewing these decisions, the complexity of these administrative proceedings becomes apparent.

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In 2010, all 50 states were required to implement the SAFE Act, with a compliance deadline of December 31, 2010.  With the passing of this deadline, individuals acting as Mortgage Loan Originators who are either California Department of Real Estate (DRE) licensed real estate brokers or salespeople, or are employed by a lender licensed by the California Department of Corporations, must complete a 20 hour approved course for the initial application, 8 hours of continuing education for renewal, pass the SAFE MLO test, and undergo a background check.  Applicants begin by completing the extensive Nationwide Mortgage Licensing System, or NMLS, application.  For anyone coming from a broker-dealer background, this application will look familiar, as it is the equivalent of FINRA's form U-4 or U4.   For individuals who are applying to be mortgage loan originators, it is called the MU4 or MU-4.

For those who have passed the coursework and test, challenges may arise in background checks.  In addition to a criminal record background check, the SAFE Act requires that all applicants permit their credit to be checked as well.  Regulators will be looking for bankruptcies, unsatisfied liens, judgments, and other evidence of prior financial mismanagement.  Currently, these cases are reaching the legal departments of the DRE and DOC, and may result in the first litigated administrative MLO endorsement cases.

The SAFE Act contains certain prohibitions for issuance of the endorsement.  If an applicant has been ever convicted of a felony involving fraud, dishonest, breach of trust, or money laundering, they cannot get an MLO endorsement.  Also, the SAFE Act bars issuance of an MLO endorsement if someone has been convicted of any felony within the prior seven years.  Apparently, individuals who have criminal records, but are not barred from issuance of the MLO endorsement by these rules, will be evaluated on a case-by-case basis, just as they are for any state occupational licenses. 

Also, the SAFE Act requires applicants to submit to credit checks to determine if an applicant has demonstrated "financial responsibility, character, and general fitness such as to command the confidence of the community and to warrant a determination that applicants will operate honestly, fairly, and effectively".  So how bad must your credit be to run afoul of the SAFE Act?  No one will exactly know until these cases are litigated.  It seems likely that if someone's credit is bad enough, the licensing agency will want to see an explanation of the misfortune that occurred.  Clearly, the person whose credit was trashed due to medical bills will do better than a compulsive gambler.  Also, credit can be cleaned up.  NMLS websites actively encourage applicants to check their credit first and clean up their credit reports before applying.  

Review of credit reports by state agencies to make licensing decisions is a new, and uncomfortable area.  The poor credit criteria draws a correlation between financial mismanagement and dishonesty that is a difficult analogy.  My suspicion is that absent unsatisfied judgments or liens that cast an applicant in an appalling light, this criteria alone, without some prior criminal misconduct, will be a difficult standard to apply to deny the endorsement.

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For about 70 years, the California Department of Justice tracked prescriptions of narcotic medications as a means to detect prescription drug abuse.  In 2008, then-Attorney General Jerry Brown set out to modernize the system, which came to be known as CURES, or Controlled Substance Utilization Review and Evaluation System, so that instead of calling or faxing in information requests, physicians and pharmacists could log in and check prescription histories to detect diversion of narcotic drugs through filled prescriptions.

As the CURES system has been modernized, it is also become a widely used tool for the detection of "doctor shopping," excessive prescribing and other strategies whereby both patients abuse prescription drugs and physicians game the system to essentially act as drug dealers from their medical practice.  The result of the modernization of the CURES system is apparent in a growing number of high profile cases involving physicians criminally prosecuted and disciplined for excessive prescribing of narcotic medications to drug abusing individuals.  CURES has become a law enforcement tool for the Medical Board and police alike to both detect and substantiate perceived drug dealing involving medical practices and pharmacies.

Physicians must therefore be mindful of patients who return for multiple refills of narcotic medications.  In these cases, a check of the CURES database through the Department of Justice can detect doctor shopping behavior by a patient.  Also, physicians should be aware that excessive prescribing of dangerous drugs outside of practice norms can raise a red flag resulting in a Medical Board investigation and more dire consequences.

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Widespread use of the internet by regulatory agencies to post disciplinary actions, causing damage to licensees' reputations and dramatically impacting careers, is a deeply unfortunate reality.  Prior to widespread use of the internet, "practical obscurity" kept disciplinary information largely out of the reach of the public, because records were only available by telephonic or written request.  "Practical obscurity" has given way to "ambient findability," the ability for anyone with internet access to readily access information.  State agencies now post both pending, unproven accusations and disciplinary decisions, indefinitely, and with impunity, in their role to protect the public.

The rise of "ambient findability" has prompted a new service known as "reputation enhancement" or "reputation defense."  Simply put, if one cannot remove derogatory information from the internet, but anyone can freely post information, negative or positive, then posting as much neutral or positive information can overwhelm and obscure a negative entry.   Although there are services that will flood the internet with positive information to bury negative information, it is also possible to do it by oneself.  Indeed, it is imperative that every person regularly check, and take charge of, their internet reputation.

Facebook, My Space, Twitter, online professional directories, and other sites enable one to make numerous free web pages, producing substantial content for search engines.  Although time consuming, it is possible to create a significant positive web presence.  To the extent that a licensee's name is unique, and therefore easily searched, the greater the "ambient findability."  Such licensees should be very vigilant with their internet reputation.  Individuals with more ordinary names can be much more difficult to search.

Unfortunately, information on a licensing agency's website itself remains accessible for one who does a basic search and click.  In the future, licensees may bring lawsuits to prevent the dissemination of unproven allegations or inaccurate disciplinary information.  California's Information Practices Act and other laws could provide relief, particularly when disciplinary information becomes outdated and irrelevant.

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Health care boards in California are increasingly focusing on supervision issues, which can result in discipline for aiding and abetting unlicensed practice.  Two examples of this are a warning recently issued by the Medical Board of California to its licensees, and a recent reversal of a longstanding position by the Physical Therapy Board.  Licensees should be aware of a heightened vigilance for inadequate supervision of, and unlicensed practice by, employees of licensees of these boards.

The Medical Board of California issued a warning in its newsletter against the use of unlicensed international medical school graduates in medical practices to perform certain treatments.  This follows a line of advisories cautioning physicians to limit or refrain from using aides, assistants or nurses to perform certain cosmetic procedures.  The difficulty with this area of regulatory compliance is that as new technology emerges and procedures develop, the rules of what certain subordinate licensed personnel or unlicensed personnel can do is often a matter of expert opinion and internal board policy.  A good rule of thumb is that the supervising practitioner and the licensed subordinate should both check with their licensing agencies to insure a specific procedure falls within the scope of their respective licenses.  A health care professional using any unlicensed personnel for participation in patient treatment, regardless of their skill level, may be doing so at great risk.  Physicians have been cautioned to take special care to not enter into business with, or be employed by, unlicensed individuals who exercise some degree of control over patient treatment.

The Physical Therapy Board also has struggled with issues of unlicensed practice as well as improper role reversals between physical therapists and physical therapist assistants.   The PT Board recently reversed its longstanding position that a corporation not owned by physical therapists could provide physical therapy services, provided that the corporation was not owned by physical therapist assistants who worked in the corporation as PTAs.  The Physical Therapy Board now takes the position that physical therapists must incorporate, if at all, as professional corporations solely owned by physical therapists.  The former rule was a reflection of the market reality that physical therapists often have worked in organizations owned by other health care professionals or business savvy physical therapy assistants.  This rule reversal, unfortunately, leaves many unanswered questions about potential license discipline when professionals from different health care disciplines go into business together, a practice which, the new rules demonstrate, remains highly disfavored.

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Thousands of California nurses who were initially licensed before1990 are facing the additional renewal requirement of submitting to a Livescan fingerprint check. For some licensees with criminal convictions in their backgrounds, this check may lead to license discipline. There are steps a licensee can take to prepare for this requirement and what it may bring.  

Prior to 1990, the California Board of Registered Nursing did not have its licensees submit to fingerprinting at the time of application. Indeed, the Board did not even ask about a licensee’s background. In 1990, the Board began asking for fingerprints, but still did not ask about an applicant’s background. Only after adverse publicity did the Board begin to ask for both fingerprints and background information from license applicants and for background information on renewals.  The Board is now in the process of identifying and disciplining perhaps thousands of nurses with criminal records that were previously undetected.

Livescan fingerprinting has replaced fingerprint cards as a way for licensing agencies to conduct background checks. An applicant goes to a Livescan location, submits a Livescan request form, and places their fingers on a platen glass that scans their fingerprints. This information is transmitted to the California Department of Justice and the Federal Bureau of Investigation for California and nationwide criminal record checks. The information from the records check usually reaches the Board in about two weeks. 

If you suspect that you may have an arrest or conviction on your criminal record, you can do your own Livescan and have the results sent to you. The California Department of Justice has a webpage with instructions for getting your California “rap” sheet through the Livescan process. The Federal Bureau of Investigation, or FBI, also will supply you with a reference copy of your federal “rap” sheet (which would encompass federal cases and out of state cases). The FBI has instructions on its website. However, the FBI will require you to send in old-fashioned fingerprints, taken usually at your local law enforcement agency.  

It is particularly useful to find out exactly what will appear on your “rap” sheet if you are unclear whether a past law enforcement contact resulted in a conviction. You may also be unclear whether an out-of-state case (particularly a minor matter that may not have resulted in a conviction) is on your federal “rap” sheet, since some states have alternative methods of handling cases that do not result in conviction. Also, there is sometimes confusion over whether a matter that occurred near one’s 18^th birthday resulted in an adult conviction as opposed to a juvenile court finding. Finally, government agencies do make mistakes, and although rare, I have seen convictions erroneously placed on one’s “rap” sheet, most commonly when two relatives share the same or a similar name. 

If you have a conviction that pre-dates your last renewal, you typically will not need to disclose it on your renewal, since the renewal question typically only asks for convictions since the last renewal. Therefore, if you know you have older convictions that will come to light from the Livescan, there are steps you can take in anticipation of possible discipline.

First, a key question is whether you will be disciplined. The nursing board has no statute of limitations, and there is no cutoff date before which convictions will be ignored. In all likelihood, in deciding whether to seek discipline, Board enforcement will balance several factors, including the severity of the conviction(s), the number of convictions, any pattern of behavior shown by the convictions, and the public protection implications of the convictions. Our firm can analyze your particular situation to provide an evaluation of how likely the agency may be to discipline.  

My first advice to a licensee who anticipates license discipline is to make good use of one’s clean, clear and valid license. A single, stable and supportive employer, who would even stand by you when a discipline case is pending, can be critical for one’s license and career to survive license discipline. Registry work, home health care, and other itinerant or temporary work, is frowned on by the Board, and can be problematic in settlement, at hearing or during probation. Also, a history of temporary positions provides a less compelling case for past problem-free performance. If you think your employer will show you the door as soon as derogatory information hits the Board’s website, it may be time to look for a new employer. 

Second, a clean record can be used to apply for licenses in other jurisdictions, as well as for certifications or other professional credentials. If you had intended to apply for a license in another state that may be unconcerned with a very old criminal conviction, but might be troubled by a fresh Board accusation, it may be time to move on that application. It is usually easier to hang onto a license in the face of license discipline from another state than to apply for a license with an already tarnished record. 

Third, anticipating license discipline should trigger personal and financial planning for the possible storm ahead. Some licensees are fired as soon as an employer learns of a pending accusation, even if the license remains valid and unrestricted. There are costs in a license discipline, not only legal fees, but also the Board’s investigation and prosecution costs, which the Board can recoup at the imposition of discipline. I am not advocating turning one’s life upside down out of fear and speculation, but conservative financial and personal planning is usually a prudent step. 

Fourth, and most importantly, if your criminal convictions speak to a problem that remains unaddressed, such as drug or alcohol addiction or mental health problems, start on your rehabilitation immediately. Seek out a program or counseling. Also, collect documentation of any personal improvement efforts you have made and show your life progress, including certificates of completion, achievement awards, thank you and recommendation letters, positive evaluations and reviews.  

By replacing fear and ignorance with planning and information, you can survive and even take something positive away from a Board background check.

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California physicians must self-report criminal actions to the Medical Board of California.  This mandatory reporting occurs independent of license renewal, although similar disclosure is also required on the license renewal form.  Since license renewals ask for adverse information disclosure, basic compliance is relatively easy.  [However, written explanations that usually must accompany a renewal or an application are best submitted only after review by a license law attorney.]  Complying with mandatory reporting laws benefits the licensee by acting in a required but also responsible fashion, and also avoids a possible sanction, such as a citation and fine, for failure to report an adverse action.

All California physicians must disclose all criminal convictions and the bringing of felony charges against them, by criminal complaint or indictment, within 30 days of the occurrence.  The mechanism for reporting criminal actions is the 802 report, available online from the Medical Board of California’s website.  The form primarily asks for information that enables Board enforcement personnel to conduct an independent investigation of the criminal action.  Failure to report can be grounds for discipline against a physician, although, typically, formal discipline is only sought for failure to disclose in conjunction with other grounds for discipline.  Failure to report in and of itself will typically only be cited for a fine of $1,000.00 or less.  Although I have never seen it done, failure to submit a mandatory criminal action report can constitute a crime punishable by a fine up to $5,000.

I strongly urge my physician clients to submit their 802 report, accurately completed and in a timely manner.  If the form is late, I recommend sending it anyway.  There are several benefits to submitting the 802 report. First, under a related reporting law, the criminal court clerk must also report physician criminal actions to the Medical Board.  Therefore, it is better to be proactive and candid with the Medical Board if the Board will independently discover the criminal action anyway.  Second, the positive impression made by proactive disclosure can mitigate or even prevent discipline (in a close case) against the licensee.  Third, providing information to the Medical Board ensures that the information will be accurate.   

Physicians are typically fearful of making a report of a criminal action to the Board.  I completely understand and sympathize with this fear.  This fear, paired with the hope that the Board will never discover the criminal action, is the typical reason a physician would choose to not report a criminal action.  However, it is much more likely that the Board will eventually discover the criminal action.  The non-reporting may very well be viewed by Board enforcement as concealment or dishonesty.  This violates the trust between the licensee and agency.  If there is a close question as to whether the criminal action should trigger an accusation, Board enforcement staff, unhappy with the non-disclosure, may lean towards formal discipline. 

Finally, I would like to say a word about Board disclosure advice from criminal defense attorneys.  A licensee charged with or convicted of a crime may be advised by their criminal defense attorney to make no statements to anyone including their licensing agency.  However, a professional license is not a right, it is a privilege, and licensees do not enjoy the same rights vis-à-vis their licenses as citizens do concerning their liberty and property.  A felony charge, even if frivolous, must be disclosed.  Any misdemeanor conviction, even if it is to be expunged, must be disclosed.  If one deviates from compliance with these rules upon the advice of an attorney, I would get that advice in writing at a minimum, to cite it in the future as a defense, if necessary.    

An appropriate demeanor, including honesty and taking appropriate responsibility, can be crucial to achieving a favorable result with the Medical Board.  Prompt compliance with the Board’s disclosure rules is an important first step.

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Years of experience have taught me that there is a rule of diminishing returns in licensing law.  In general, the earlier in the development of a problem that I intervene, the more effective I can be in limiting damage to a license or license application.  Two examples of this principle transpired in the last 24 hours at the office, when two different criminal defense attorneys called me for advice on how to be resolve criminal cases for their professional clients to minimize license discipline.  A simple 15 minute conversation today can yield a greater benefit than 150 hours of work on an appeal years in the future.

This particular issue cuts to the heart of licensing law.  Clients contact our firm seeking solutions to their licensing problems.  Typically, the further along their case is, the more difficult the task of containing the damage to their license and reputation can be.  For this reason, a client who has been previously denied a license (after going through the entire process from application to decision after hearing) may hire us even before their very first communication with the licensing agency, to insure that every step is taken to maximize success.

The first critical point in a licensing matter is that first communication with the licensing agency - either a mandated disclosure or response to an agency inquiry.  If that opportunity to say and do the right things is missed, the next critical point is at receipt of an accusation or application denial.  At that point, there still is typically ample time to take rehabilitative actions and identify mitigating evidence that can change the result of an administrative hearing.  As the administrative hearing approaches, though, for many licensees or license applicants, opportunities begin to be lost, then this process accelerates.

Once the administrative hearing is concluded, the die begins to be cast.  Unfortunately, it is often only after the licensee or applicant walks out of their hearing, or worse yet receives an adverse result in the mail, that the hardest lessons of diminishing returns are revealed.

Licensing agencies and courts are generally quite deferential to the hearing decision of an administrative law judge.  Once an administrative law judge has decided the case, and the agency has adopted that decision,the remaining legal options generally are ask for reconsideration, petition the Superior Court for a writ, or wait reinstatement after rehabilitation.  However, in administrative law, as in all law and litigation, second chances can be hard to come by.  As a general principle, the integrity of our state license discipline apparatus depends upon agencies typically making decisions that conclude cases and withstand challenges.  This begs the question of what, if anything, can be done in the latter stages of administrative litigation.

As a general rule, post-decision case reversals depend upon either new, "game changing" evidence, or an identified legal mistake made by the agency or judge.  Most potential appeals that come into the office would be argued as "abuse of discretion," which can be described as patent unfairness in the imposition of and degree of discipline.  Unfortunately, true abuse of discretion occurs very rarely.  Courts are loathe to second-guess agencies and administrative judges. 

The lesson for licensees and license applicants is that pro-active, positive action at the earliest possible stage of the licensing matter can make a big difference in the outcome of an administrative hearing.  It is crucial that the licensee or license applicant communicates information and demonstrates a demeanor that is honest, remorseful for past mistakes, and humbly and energetically seeks to right the wrongs of the past.  To be certain, some serious license discipline or application denial cases must be litigated to conclusion or through appeal.   Negative assumptions can cause an attorney to miss issues for reversal, and thus should be avoided.  However, clients must recognize early on the depth of their dilemma, and after receiving an adverse decision, must then think carefully about the risk benefit analysis involved in pursuing a license appeal.

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