New clients sometimes call the firm to ask ” what are my rights?” in a license discipline or license denial case.  The answer to this question goes to the heart of the complexities of representing clients in professional licensing cases.

When I see that a client is struggling with the concept of their constitutional protections, I usually ask them to envision a continuum (like a time line), with criminal cases at one end and at the other end licensing cases, and in the middle civil cases for money damages.  The criminal end symbolizes the greatest constitutional protections, the licensing or administrative end represents the fewest protections.  I then talk about three major case types in exemplifying the rights involved in each.

Starting with the greatest protections, a criminal defendant enjoys the strongest rights because their liberty is at stake.  A criminal defendant has the absolute right of presumed innocence, and can only be found guilty beyond a reasonable doubt by a unanimous vote of twelve unbiased peers.  The criminal defendant can remain silent throughout the trial.  The defendant is guaranteed an effective defense, which for someone indigent can mean a free lawyer and even a free investigator.  These are some of the rights involved.

In a civil case, typically a defendant must be found liable by a preponderance of the evidence (basically, more than 50 percent).  A defendant is entitled to a jury of his peers, but a unanimous decision is not required.  Numerous procedures, including discovery (exchanging information through asking for documents and answers to questions,  and taking depositions) and summary judgment motions (to get a case that lacks merit dismissed) are available to the defendant.

In a licensing case, there is no jury.  The neutral judge who hears the case only makes a proposed decision, which then goes to the licensing agency for adoption, non-adoption or modification.  In other words, the licensing agency board or agency head (without a board) makes the final decision.  The licensee has no right to remain silent, meaning they must testify at their trial.  (Asserting Fifth Amendment rights creates a negative inference against the licensee or license applicant.)  There is nothing to prevent an agency from bringing even a meritless case against the licensee and to press the matter to hearing.  And, in most cases, a licensee can be made to pay reimbursement to the licensing agency for its attorneys fees and investigation costs.

The rights, or lack of rights, of a licensee in a disciplinary hearing, is often shocking to hear the first time.  However, there are reasons why licensees have fewer rights.  First, a professional license is a privilege, not a right.  Second, the protection of the public against incompetent, impaired or dishonest licensees is paramount for a licensing agency.  And third, a license issued by a licensing agency is neither a fundamental freedom nor the personal property of the licensee.  It is a grant of permission predicated upon education, experience, exams, payment of fees, and meeting qualifications.

The striking difference in rights between criminal, civil and licensing matters may lead one to ask, can a license discipline case be fought and won? The answer is yes.  Despite the relatively few rights that a licensee has, a skilled attorney can contain the damage from a license discipline action and even win cases.  The key is understanding that the administrative discipline process is a system which is somewhat predictable.  A licensing attorney must usually work with, and sometimes within the system, to avoid loss of license or severe discipline.  Finally, the client must be willing to take steps, sometimes extraordinary steps, to reassure their licensing agency that they are safe and competent to work in their profession.