An accusation is the document that commences formal license discipline against a California licensee.  If you know something about law, you might have heard of a civil or criminal complaint; it is similar.  Simply put, it is a letter from the executive officer or an administrative chief of a licensing agency to the governing body (such as a board) or individual (such as a commissioner) asking them to impose discipline.  Now you might ask yourself, why would an executive officer have to write a document to the agency head(s) he or she works for, of even sometimes, write a letter to himself or herself (if the executive officer and the agency head are the same person)?    

The answer is that the primary function of the accusation is to give notice to a licensee of what discipline a license agency is seeking and why.  

Government Code section 11503 tells us what an accusation is: "[t]he accusation shall be a written statement of charges which shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare his defense."  Unfortunately, the accusation is never in ordinary language, and often is not concise.  The rest of this definition states the most important function of the accusation.  It frames the disciplinary case.  This can become important if, for example, at a very late stage of the proceeding, the agency finds it cannot make its case.  At that time it may be too late to step outside the accusation and allege different wrongdoing, because that would violate due process.

The accusation tells a licensee, and importantly his or her attorney, why the agency has jurisdiction, or power over, the conduct alleged in the accusation.    The accusation spells out a theory of the case.  It is like a flight plan the agency’s lawyer must follow.  

Importantly, the accusation does one other thing, it gives the public notice of the allegations within.  The accusation is a public record.  As the accusation only tells one side of the story – written by the agency seeking discipline – it can be quite damning, and even sensational.  A scandalous accusation can do more damage than the discipline it seeks by ruining a reputation well before the disciplinary case is over.

Not every agency puts out its accusations for public consumption, and some who do are careful to explain that the accusation contains just unproven allegations.  However, most agencies will just put the accusation out there, sort of a ‘shoot first and ask questions later’ approach.  

A lawyer for a licensee must carefully study the accusation to challenge the laws invoked, the discipline sought, and to hold the agency to its "flight plan" so that it follows the rules of fairness and due process.  The public must understand that the accusation is an advocacy tool seeking to put an individual or organization in a bad light to begin to persuade a fact finder to impose license discipline.  It is not fact and should not be treated as such.

California licensees can face license discipline or denial not only for allegations of wrongdoing or criminal convictions, but also due to prior discipline of licenses held in other states.  Although this can happen among any of the professions, the most common professions where other state discipline impacts a California license are physicians and nurses.  It does not matter if the California licensee lives in another state, and the discipline happened also outside of California, as long as they have among their licenses a California license, the California licensing agency has jurisdiction to seek discipline (or use other state discipline as a ground for denial). 

In the case of Marek v. Board of Podiatric Medicine, (1993)16 Cal.App.4th 1089, a California court of appeal found that a California licensing agency does not have to prove the conduct underlying the other state discipline in order to discipline a California licensee.  The Marek rule limits the ability of a California licensee or license applicant to challenge the disciplinary order previously handed down from another jurisdiction.  Therefore, if a California licensee has suffered prior discipline in another state, the question is usually not whether the licensee will be disciplined in California, but instead how severe the discipline will be. 

However, I must hasten to point out that the Marek rule should not be understood to mean that other state discipline can never be challenged, or that a California licensee must be disciplined in this situation.  Even if there are grounds to discipline a license, the fundamental question of all California license discipline proceedings is the extent to which the public must be protected.  It may be that the other state discipline merits no discipline at all in California.  I can think of at least four scenarios where this might be the case.  First, the unlawful conduct in another state is actually lawful in California.  Second, the other state discipline is so remote in time that it is hardly relevant to the licensee’s current professional practice.  Third, the record of the other state discipline has been somehow sealed, destroyed, removed, cleared, expunged, etc.  Or fourth, California has no equivalent to the other state discipline.

This fourth scenario points to the other issue when a California licensee is being disciplined for prior discipline in another state.  Typically, the California agency will seek equivalent discipline in California.  This is sometimes a simple task, for example, to my knowledge all states issue reprimands and all states revoke licenses.  However, another state may issue some type of order or decree that lacks a California equivalent.  Likewise, a licensed professional may suffer discipline in several states but the degree of discipline may vary from state to state.  Obviously, a license lawyer will argue that California should align its discipline with the least punitive of the other jurisdictions.

Other state discipline, despite the relatively simple rules of the Marek case, present challenging and potentially complex issues.  Thoughtful analysis of the other state discipline can yield very positive results in the California matter.

 

For the start of 2014, I am creating a new line of articles I am calling "CA License Law 101".  With a sorry lack of good information on the internet that explains how license law works for the California licensing agencies that follow the Administrative Procedure Act (basically all of them), I will strive to get "back to the basics" and explain common terms, documents, issues and procedures that make up the law that controls the California process for regulating, issuing licenses to and disciplining California licensees.

So here I begin with the Statement to Respondent.  I am starting here because when the dreaded big manila envelope shows up from your licensing Board, Bureau, Department or Agency, with a stack of legal documents inside, the document on top is the Statement to Respondent.  The Statement to Respondent is intended to be a notice that educates a licensee or license applicant about their most important rights and obligations.  However, we find in our practice that it accomplishes two basic tasks – first, scaring the heck out of the recipient with intimidating legal language, then in much simpler and friendlier language, encouraging settlement by just contacting the agency attorney.  

The Statement of Respondent must contain these four pieces of information:

1) that you need to request a hearing within 15 days, or you will be deprived of a hearing (found in default),;

2) that you can ask for discovery, that is, all the evidence that the agency has accumulated to build this case against you;

3) that once a hearing is set, if you need to postpone it, you need to let OAH know you want to postpone it within 10 days of learning of the reason to postpone it; and

4) that you can, but need not be, represented by counsel.

When a licensee or license applicant reads the Statement to Respondent, they tend to do one of two things – call a license lawyer, or call up the agency attorney (often the Deputy Attorney General).  Unfortunately, we are so often later told by our clients, that if they called the agency attorney, the first thing they are often told is they do not need to hire an attorney. 

As you can tell, I am pretty critical of the Statement to Respondent.  First, I think that the Statement to Respondent should counsel every recipient to get as much legal help as they can afford.  After all, agencies don’t handle disciplinary cases themselves, they have a staff attorney or the Attorney General represent them.  If a staff member at the Board of Registered Nursing, for example, cannot handle an accusation on their own, how is a nurse supposed to?  Secondly, this document is used to promote settlement at a stage when settlement is very premature.  The priority upon receipt of the Statement to Respondent and accompanying documents is to preserve the right to a hearing, get information, research the law and issues, advocate for the best possible outcome, and then, and only then, settle if, and only if, the facts and law support settlement.

If you have received a stack of documents topped with a Statement to Respondent, I am sorry for your news.  I encourage you to call our office for a consultation to see how we can help.  Stay tuned for more CA License Law 101 articles, I hope you found this one informative.

 

 

Among the thousands of applicants who seek to become a registered nurse in the state of California each year, hundreds have criminal convictions or other adverse actions (such as other license discipline) of some kind in their background.  A license applicant with a criminal conviction or other adverse action typically has three obstacles to clear before receiving their California RN license, and navigating through this process successfully requires an experienced licensing attorney.

The first obstacle is whether to disclose a conviction or adverse event.  The RN application requires, for example, that convictions be reported “even if they have been adjudicated, dismissed, or expunged, or even if a court ordered diversion program has been completed.”  We see some new clients each year who have failed to list a conviction on the registered nurse license application, when in fact disclosure was required.  The Board will sometimes deny a license simply because an applicant failed to list a conviction, even if the Board of Registered Nursing, or BRN, would not have denied the license on the basis of the actual conviction itself.

The second obstacle is disclosing the conviction to the Board in a manner most likely to avoid a license denial or improve one’s chances in an administrative proceeding by presenting helpful facts and an appropriate demeanor.  The Board of Registered Nursing requires a statement from the applicant describing the facts and circumstances of the conviction together with other supporting documents.  This is where a professional licensing attorney’s assistance is invaluable.  Applicants often make grave mistakes in their statement to the Board, providing either too much information (perhaps giving the Board additional cause for concern), too little information (giving the Board the impression that the applicant is dishonest or lacks remorse), or unhelpful information (overlooking mitigating facts or exhibiting a concerning attitude).  The presentation of the information is especially important – often, applicants are concerned with “making a good impression” to the Board of Registered Nursing, and will therefore minimize certain aspects of the conviction to attempt to portray themselves in a better light.  Clients of ours are often shocked to hear their own words, written by them in a vain attempt to try to make a good impression, used against them in an administrative hearing to support license denial.

Finally, the third obstacle to navigate is responding to a letter of license denial that some license applicants with criminal convictions will receive.  A letter of denial is not the end of the process; for most applicants, it represents just the beginning.  A license denial can be appealed to an administrative hearing court, where an experienced attorney can help you make your case for licensure directly to an administrative law judge.  Just like when licensed nurses are accused of misconduct, license applicants must persuade the California Board of Registered Nursing that the public will not be endangered by granting them a license.  This involves the presentation of strong mitigation and rehabilitation evidence and a well planned and thoughtful presentation addressing the Board’s concerns.

Defense counsel for a license applicant must be able to discuss and apply the Board of Registered Nursing’s published disciplinary guidelines to an individual case.  Convictions that look similar or identical on paper can involve different case presentations depending on the individual circumstances of each event.  These convictions must be carefully explained to the Board at the application stage, as well as carefully presented with appropriate advocacy during an administrative hearing.

The considerations are the similar, and our representation is equally effective, if you are applying for an LVN, psychiatric technician, respiratory therapist or physician’s license, or any other California occupational license.  If you are applying to become a Registered Nurse in California, and have a conviction or adverse event to possibly disclose, or are in the midst of a license denial case, please contact us for a consultation at (949) 557-4888.

The California Board of Registered Nursing files hundreds of accusations each year against registered nurses.  The vast majority of these accusations are filed due to criminal convictions or other alleged unprofessional conduct.  A small number are filed due to complaints of incompetence, gross negligence or  less common alleged violations of the Nursing Practice Act.  Effectively defending a California registered nurse takes a great deal of experience and insight into the Board’s past conduct in deciding these matters.

The first and most important consideration in defending against an accusation is that the Board of Registered Nursing’s primary objective is to protect the public.  The Board acts on behalf of the public, not registered nurses.  Therefore, the Board must be persuaded that the public health and welfare will not be endangered by a nurse who has received an accusation.  The role of the license defense attorney is to develop mitigation and rehabilitation evidence, working with the nurse, to address this concern.

The second consideration is that defense counsel must have a detailed knowledge of the Board of Registered Nursing disciplinary guidelines and the past patterns the Board has shown in applying those guidelines.  California licensing boards strive for consistency.  An attorney who can effectively employ the disciplinary guidelines and similar case histories to argue for license preservation or reduction of discipline can mount an effective defense strategy.

The third consideration is that a registered nurse must adapt to the circumstances of having an accusation pending.  Unlike other professions, self employment by nurses is very rare.  Nurses are almost always employed by others.  A nurse facing discipline must carefully consider his or her employment situation and future employment impacts due to a license discipline case.

We have represented hundreds of nurses successfully to save licenses in danger of revocation, reduce license discipline, and even prevent discipline by early involvement in cases.  If you are a nurse with an accusation, or even with a criminal court or workplace issue that may lead to an accusation in the future, please contact us at (949) 557-4888 for a consultation.

It seems that every few days I run across someone new who claims to be a “professional license lawyer”, “occupational license lawyer” or “license defense lawyer”.  Looking at flashy websites and claims of experience and thorough knowledge, it is difficult to tell who is a qualified, experienced  professional license lawyer and who isn’t.  However, there are some simple steps to make certain to get the real McCoy, and not some cheap imitation.

Google Search the Attorney

The first step in identifying the true nature of an attorney’s practice is to Google search the attorney’s name.  Only then will you see all of the attorney’s websites and other reports that reveal their true primary practice area.  For most attorneys who profess to be license law attorneys, their practice is almost exclusively criminal defense, while dabbling in professional license law.  By looking at their primary website, you can determine the true emphasis of their practice.  A busy criminal defense attorney is going typically have insufficient experience in professional license law to anticipate crucial issues, to skillfully negotiate, and if necessary, to effectively litigate at trial.

Search for the Lawyer on Avvo.com

Avvo.com requires that the attorney give a breakdown of the percentages of their practice.  Also, clients give reviews that typically describe the client’s legal matter.  Although Avvo.com is not always 100% accurate, this overview typically gives a fairly good picture of the attorney’s practice.

Look for Years of Case Results and Meaningful Web Content

An experienced license law attorney, such as myself, has handled at least hundreds of cases and has many case results on their website stretching back several years.  Also, their website will contain meaningful and insightful content.  Further, a skilled license law attorney will not just defend licenses, but also deals with related issues such as regulatory compliance, federal licensing, certification appeals, insurer and government exclusion actions in health care, FINRA and NMLS issues for insurance brokers and real estate brokers, an so forth.  Only through years of practice and experience can an attorney achieve a high level of understanding and issue recognition for all the pitfalls that confront a California licensee or license applicant.

How Often Does the Lawyer Try Cases at OAH? Do They Do Writs and Appeals?

Our law firm defends clients in trial at the Office of Administrative Hearings every month, sometimes every week, sometimes more than once a week.  An experienced license law firm should have completed at least 100 trials (called hearings) at OAH and have done numerous petitions for writs of administrative mandamus appealing adverse decisions.  A license law attorney with little or no administrative courtroom experience may fear the hearing process, can fumble through hearings, and might do more harm than good.

Modern Lawyering and the Niche Practice

The practice of law has become complicated in the last several decades.  Clients have come to expect a great deal of experience and expertise.  Smart clients now look for lawyers in niche areas with a thorough knowledge of their legal issue.  In simpler times the attorney who dabbled in several areas of law could competently master the relatively simple and straightforward legal landscape.  Such lawyers may now fall short of expectations.

If you have a professional license matter, we hope that you will contact us at (949) 557-4888.  If you have a legal matter in another area of law, we will do our best to recommend a qualified colleague or refer you to your local bar association.

The California Medical Board routinely investigates criminal convictions and often even criminal arrests suffered by California physicians.  These investigations are handled by Board investigators out of field offices throughout California, including offices in Tustin, Cerritos and Valencia in southern California.  Thoughtful preparation for one of these interviews can make the difference between receiving a career devastating accusation or the matter being simply closed without action.

How the Medical Board Learns of Criminal Convictions and Arrests

There are four main ways that the Medical Board can learn of a criminal conviction or felony charges.  The first way is if a court clerk or prosecutor files a report with the Central Complaint Unit.  Court clerks and prosecutors are supposed to file a reporting form with the Board under Business and Professions Code section 803.5.  However, as a practical matter, busy court clerks and prosecutors are often unaware of the reporting duty and do not file the report.

The second way is that the Department of Justice can notify the agency that a licensee has suffered an arrest or conviction.  The DOJ is aware of licensure from the initial Livescan done at the time the license application is made.

The third way is that a physician must report a conviction pursuant to Business and Professions Code section 802.1.  The "Physician Reporting – Criminal Convictions" form requires that the physician report any criminal conviction or the filing of an indictment or information charging a felony.  If a physician fails to make that report, the physician can be cited and fined.  A common fine is $750.00, but can rise up to $5,000.00.

The fourth way is that a physician must report a criminal conviction on the license renewal form.  Checking the "no" box when untrue can be grounds for discipline against a licensee, not only for non-reporting, but for dishonesty. 

Once the Board Becomes Aware of A Conviction

After the Board learns of a felony indictment or information, or any conviction or even sometimes an arrest, the Board can take a couple of approaches.  Less frequently, an enforcement analyst will obtain police reports and court records then contact the physician for a written statement.  Most often, a Board investigator in a field office will obtain the court documents and police records, take statements from any third party witnesses, and then finally interview the physician.  The interview will be digitally recorded.  Questioning is usually conducted by a Board investigator with a Deputy Attorney General present to ask additional questions and evaluate the case for possible discipline.

Topics of Questioning at the Board Interview

A physician may believe that the Board is interested in the conviction itself, but that would be a mistake.  The Board is not so interested in the actual arrest or conviction, but instead focuses on what the conviction or arrest reveals about the physician.  The Board in reality is looking for evidence of impairment, such as addiction or mental illness, dangerous or reckless behaviors, or illness that can affect competency.  As such, the scope of questioning can be very broad and enter areas that surprise or trouble the physician being questioned.

Preparation for the Interview

In some cases, it is best for the physician to answer no questions at all, particularly if an arrest has not resulted in a conviction and there is still a danger of criminal prosecution.  However, in almost all cases the conviction is a settled or decided matter.  In such cases, the interview is necessary to address troubling concerns the Board may have about the physician.  The extent to which the physician puts those concerns to rest and reassures the Board will determine whether or not the investigation will lead to disciplinary charges.

In any interview, it is critical that the physician be honest and forthright.  The concerns that arise from the arrest reports and court records should be addressed.  Evidence of mitigation not present in those documents can provide important context, and rehabilitation evidence can show that a behavioral issue has been addressed by education, counseling or other remediation.

The Role of an Attorney

Board investigators expect physicians to be represented by counsel in an investigation, although they will sometimes tell a physician they don’t really need a lawyer.  However, the Board investigator himself or herself will often have their lawyer, the Attorney General, involved in the case and present in the interview.  Every investigated physician should have legal counsel.

A lawyer serves many critical purposes.  The first purpose is to shield the physician from intrusive and disruptive surprise contacts or interviews.  The second purpose is to regulate the flow of information, both documentary and verbal, between the Board and physician.  The third purpose is to ensure the physician is treated fairly, with respect, and not bullied or harassed.  The fourth purpose is to prepare the physician to respond to questioning.  The fifth purpose is to advocate on the physician’s behalf and employ strategies to seek closure of the case without discipline.

 

 

 

Orange County and Riverside County licensees and license applicants may typically have their cases heard in either the Office of Administrative Hearings in Los Angeles, the Office of Administrative Hearings in San Diego, or a local venue in Orange County, depending upon the licensing agency.  Certain large boards, such as the Medical Board of California or the Dental Board of California, have Orange County offices that handle investigations.  From our offices in Orange, we have particular expertise in representing Orange County and Riverside County clients before California state licensing agencies.

Orange County and Riverside County cases where the Attorney General represents the licensing agency, such as Medical Board, Board of Registered Nursing, Board of Pharmacy or Board of Accountancy cases, are typically handled through the San Diego Office of the Attorney General with hearings at either the Office of Administrative Hearings in San Diego or at an Orange County or Riverside County venue such as a conference room in a local state government office.  Agencies that have their own staff attorneys, such as the Department of Insurance or the Bureau of Real Estate, typically have Orange County and Riverside County licensees and license applicants travel to the Office of Administrative Hearings in Los Angeles for their hearings.  A notable exception is the Department of Social Services, which tends to hold hearings in their offices in the county where the licensee or license applicant is located.  In Orange County, DSS hearings are held in their offices in Orange most commonly, and in Riverside County, at the state office building in downtown Riverside.

As experienced Orange County and Riverside County professional license law attorneys, we have daily dealings with the Office of the Attorney General in both Los Angeles and in San Diego, as well as other agency staff counsel (such as the Department of Insurance) who regularly handle Orange County and Riverside County matters.  Navigating administrative law venue rules, we can get hearings moved to Orange County or Riverside County in certain cases for the benefit of the client.  Although we proudly and happily provide excellent representation to clients statewide and California licensees across the country, we hope our Orange County and Riverside County neighbors will call us at (949) 557-4888 for a consultation.

 

Facing possible “sunset” this year (expiration of the legal authorization to exist), the Medical Board of California is nearing a renewal for another four years after having successfully avoided a major overhaul.  SB 304 will move the Medical Board’s investigators to the Department of Consumer Affairs.  The Medical Board currently maintains its own force of investigators.  Earlier proposals would have consolidated the investigation and prosecution functions of the Medical Board under the California Department of Justice.  Preserving the separation of these functions maintains a greater measure of Board enforcement control over its own investigations and should closely resemble the present status quo.

Although major reforms are not being enacted, significant criticism of the Medical Board in the press has been a shot across the Board’s bow.  Since the Board has been shaken by this negative attention, physicians should expect more aggressive investigations, greater cooperation between the Attorney General’s Office and Board investigators, and more disciplinary cases filed.

In this environment, it is more important than ever for any physician who is being investigated or is likely to be investigated to seek experienced license defense counsel.  The importance of an experienced attorney to make critical tactical decisions cannot be underestimated.  Doctors who are assured by an investigator that he :”just wants to ask a few questions” are usually shocked to find themselves facing across a table a  thoroughly prepared investigator, a deputy attorney general, and sometimes even an expert physician, an assembled prosecution team attentive to any missteps the physician may make on which to build a prosecution case.

If you have received a call or letter from the Medical Board of California or an associated board, please call our office today for a consultation at (949) 557-4888.

 

The financial regulatory agency FINRA disciplines stock brokers and financial advisors who are associated with its members.    A FINRA investigation can culminate in an “on-the-record” interview, or OTR, also referred to as a deposition.  A FINRA OTR is a critical development in an investigation, as it signals that FINRA is seriously considering discipline against an associated person or member.  If defense counsel has not been previously consulted, it is critical that defense counsel be engaged for preparation before and advocacy at the OTR.

A FINRA OTR is typically preceded by one or more inquiry letters to the associated person and/or member.  If the associated person person has not had their association with the member broker-dealer terminated due to the occurrence which triggered the investigation, the associated person will usually rely on the broker-dealer’s compliance person to render advice and assistance.  Even when an associated person ceases to be associated with any member, they often will correspond with FINRA on their own without legal advice.  Critical missteps can occur at this juncture. (It is important to note that FINRA has continuing jurisdiction over an associated person even after they cease to be associated with a FINRA member.)

When an associated person receives a notice of a FINRA on-the-record interview, or deposition, a critical decision must be made.  If an associated person refuses to submit to the OTR, that could result in a FINRA bar (the most severe FINRA sanction).  However, if the associated person decides to testify, the testimony must be honest, truthful and forthcoming.  If damaging admissions are made that reveal possible criminal activity, FINRA can refer a case to the U.S. Attorney for prosecution.  Therefore, the defense attorney for the associated person should make a frank assessment of the pros and cons of submitting to the OTR.  Almost always it is in the associated person’s interest to submit to the OTR.

The next step is preparation for an OTR.  A license defense attorney can determine the likely topics at the OTR and prepare the witness accordingly.  Preparation includes schooling the associated person on making a good impression and displaying an appropriate demeanor that will maximize the chances of the matter being dropped after the OTR.  It is not uncommon for an on-the-record statement to become a grueling all day process.  It is never a few simple questions.

If the OTR leads FINRA to conclude that discipline should go forward, most cases result in a stipulated settlement negotiated between the attorney for the associated person and FINRA.  FINRA disciplinary hearings can be long and costly, and can result in severe sanctions including large monetary penalties.  Nevertheless, if an associated person has a meritorious defense, and the offered settlement is unreasonable (usually a FINRA bar, which is a complete loss of privileges), going to hearing may be the best option.

If you are the subject of a FINRA investigation, you are strongly encouraged to contact our office for effective and experienced federal license defense.