When licensed professional or a license applicant receives notice that a hearing will be held to consider their matter, many first ask themselves: “Can I effectively represent myself in a license defense hearing? Do I really need to hire a lawyer?” Even applicants with criminal charges that they do not contest, who hired a criminal defense attorney just to negotiate a plea, will think twice before hiring an experienced license defense attorney. Perhaps the description of the proceeding as a “hearing” masks the adversarial nature of the process, lulling some licensees into a sense that the matter will be informal and will not require professional representation. Elsewhere on our blog, we discuss the nature of OAH proceedings and what to expect.
Clients who appear “in pro per” (a shorthand version of “in propria persona,” a Latin phrase meaning “for one’s self”) face several obstacles to successfully defending accusations against their license. Even as highly-trained lawyers, we would never represent ourselves in any proceeding. Some are more obvious than others, but a short list of the dangers of appearing in pro per are as follows:
– Lawyers spend years learning the distinction between admissible evidence and inadmissible evidence. Without this knowledge, a layperson is likely to let every piece of evidence offered by the state agency be considered for all purposes. This can be very damaging to a license defense case. For example, although the rules of evidence are relaxed in administrative proceedings, it is important to limit the use of hearsay evidence, so that the state agency must prove their allegations.
– Effective testimony must be prepared and packaged carefully. A licensee must speak coherently about only the relevant aspects of their case, often for an hour or more in one sitting. An experienced attorney shoulders this burden for the licensee by evaluating the case, preparing the questions, and asking the questions of the licensee so that only the most helpful information is shared with the administrative law judge. Testifying in the narrative fashion – in other words, without an attorney and without questions — requires doing all of those tasks simultaneously, without making harmful admissions. Many licensees and applicants lose their case by testifying ineffectively on their own behalf.
– Similarly, without knowing exactly what evidence is helpful and relevant, it is very difficult for an untrained licensee to conduct effective witness examinations. Often, the complaining state agency brings witnesses to establish elements of their case. Those witnesses must be probed for bias and inaccurate testimony, and that must be done according to the California Rules of Evidence. In addition, witness examinations must be prepared for all character witnesses. Attorneys are trained to conduct witness examinations that benefit their clients without revealing harmful information.
– Finally, and most importantly, an experienced license defense attorney knows the legal arguments that support applicants and licensees. Only attorneys who have seen multiple cases from start to finish can accurately judge the strength of a state agency’s case. State agencies use a variety of complex statutory language to justify disciplinary allegations against licensees. Experienced counsel know exactly how to respond to these allegations, including precedent cases that are helpful for the licensee, specific factual evidence that combats the allegations of the state agency, and the appropriate, applicable mitigation and rehabilitation evidence that will protect the career of the accused client. Without this experience and knowledge, administrative law judges often side with agency counsel and revoke the professional license at stake.
Further, a qualified attorney helps a licensee resolve the potential conflict between arguing passionately for the license and taking full responsibility for undisputed grounds for discipline, usually prior criminal convictions or other license discipline. When an attorney is present, the client can be remorseful and the attorney can fight for the license. When the client represents him or herself, he or she is forced to try to wear both hats—and either the case is weakened because the client doesn’t appear remorseful, or the client doesn’t know how to forcefully articulate why they deserve a license.