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, dishonesty, 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.

 

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.

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.

 

 

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.

 

 

Thousands of California nurses who were initially licensed before 1990 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 18th 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 predates 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.

 

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.

 

 

 

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.

 

 

As a child I used to watch the Rocky and Bullwinkle Show.  The brilliant talking dog, Mr. Peabody, and his pet boy Sherman would travel back in time to an important historical event and interact with historical figures.  They would use the WABAC machine, pronounced “wayback.”  Mr. Peabody would use the trip to teach Sherman (and the audience) a little about the historical event.  Remarkably, the historical figures spoke perfect English and thought nothing of a talking dog.  Time travel is impossible, of course, for we are all grounded in the present.  Except, possibly, for the recently criticized California Board of Registered Nursing, which seems to be increasingly backward-looking.

The California Board of Registered Nursing, coming under intense criticism recently, has beefed up the scrutiny of its licensees, including requiring thousands of nurses to answer certain background questions or submit to fingerprinting for the first time.  It is also, apparently, reviewing cases that it earlier had decided not to pursue.  Using its own version of the “wayback machine,” the Board appears to be revisiting some reports of unprofessional conduct or negligence of its licensees.  The Board appears to be taking a second look at older cases involving alleged negligence or misconduct that it may have earlier closed or set aside without taking action.  Importantly, the Board of Registered Nursing has no statute of limitations for bringing allegations.  Negligence allegations from five to ten years ago can be used to seek discipline against a licensee, even if the matter was previously closed, and very old misdemeanor criminal records can be raised against nurses who have unblemished work records despite their youthful indiscretions.

The lack of a statute of limitations creates a nightmare for nurses and also, in my view, a dilemma for the Board.  Licensees may be asked to defend against allegations arising from events that have faded from memory or are based upon old incomplete records.  Allegations are sometimes so old that there is a legitimate question as to how relevant they may be concerning nurses in 2010 whose performance in recent years has been exemplary.  Without having a door close on old discipline allegations, nurses are tormented by issues that remain unresolved and can easily resurface despite the passage of years.  However, if the Board, despite not being restricted by a statute of limitations, ignores older malpractice cases or overlooked criminal records, it can open itself up to criticism in the press of being a weak and ineffective regulator.

The Board of Registered Nursing is charged with protecting the public from incompetent, impaired and dishonest nurses.  The Board’s mandate is not to punish for misconduct, because perceived misconduct is only important to the extent that such conduct raises legitimate concerns about the safety of permitting a nurse to practice.  A statute of limitations not only protects licensees from having to defend against unreasonably stale allegations when important evidence may have been lost, destroyed or forgotten.  A statute of limitations also creates a temporal “frame” (like a window frame) stretching from present to recent past into which some current, relevant matters fall, and from which older, less relevant matters are excluded.

Unflattering press articles over the last year have raised the legitimate concern that the Board of Registered Nursing has historically taken too long to investigate and litigate nurse discipline cases.  Such delays would have been legally prevented by a statute of limitations due to palpable consequences for delays.  However, now that the Board has aggressively moved to cut its backlog of cases, it is no longer in danger of losing disciplinary cases due to unreasonable delay.  A statute of limitations to protect licensees is needed now, more than ever.

 

An area most often misunderstood in the regulation of the professions is the separation of powers.  To put it simply, the difference between the people or person who seeks to discipline a licensee, and the people or person who decides whether or not to discipline the licensee.  We usually refer to these "people" collectively as "the Board" or "the Department."  Sometimes we call some of them "the Attorney General."  These non-specific labels are misleading and mask the true nature of the system.

In the criminal justice system, when we violate the law we are arrested by a police officer or investigated by a detective.  The police officer or detective puts together the evidence and walks it into the District Attorney’s office.  The D.A. decides whether to file the case, and if he does, he takes it to the court to file the case and (sometimes) to a judge to get a warrant.  The judge later acts as referee of the case (between the accused and the prosecutor).  If the case is not resolved by agreement of the prosecutor and defendant, then a jury decides guilt or innocence, and the judge imposes a sentence.  Therefore, the independent district attorney, elected judge and selected jury all act as checks upon the power of the police, to ensure the fair and lawful handling of cases.  

In licensing law, the licensing agency typically is comprised of two distinct "entities."  On the one hand, there is the administrative staff, which includes enforcement staff, that acts like the police. The administrative staff may have its own lawyers, who work for enforcement staff, or may contract with the Attorney General’s office for legal representation.  In California, boards and bureaus typically hire the Attorney General’s office, while Departments (such as real estate or insurance) have their own in-house lawyers.  Lawyers who represent licensing agencies typically have less independence than a criminal prosecutor.  The criminal prosecutor can freely reject cases, but the licensing agency attorney is not usually free to make that decision, but instead must persuade their client (like in the private sector) that a case lacks merit. 

The second entity that makes up the licensing agency is the decision-maker, which is a board or an agency head.  The decision-maker should have no foreknowledge of a disciplinary matter until it is brought to them for a decision, just as an impartial jury should have no foreknowledge of a criminal matter.  Due to the volume of cases and complexity of legal issues, the decision-maker may have their own in-house adviser attorneys to help analyze cases or, in the case of a sole decision maker, lieutenants (also usually high ranking lawyers) who can aid in making decisions.  In most cases, decision-makers are too busy to hear cases themselves, so they delegate the job of hearing cases to administrative law judges, who make proposed decisions.  The administrative law judges must prepare detailed proposed decisions to give the decision-makers sufficient information to comfortably adopt most decisions.

Therefore, the licensing agency has a sort of dual personality.  For example, the Medical Board has within it administrative staff including enforcement staff.  The enforcement apparatus of the Medical Board of California has considerable resources.  With a large staff in Sacramento and twelve district offices, enforcement staff includes analysts and investigators in the field who identify and build cases against physicians.  This enforcement work is done with no direct supervision by or knowledge of the Medical Board itself, a 15 member group that meets about 4-6 times per year to make decisions, including decisions on disciplinary matters.  Board enforcement staff hires and pays the Department of Justice to provide it with Deputy Attorney Generals to represent it in legal matters.  Only once a case has been litigated until a proposed decision is reached does that case then come before the Medical Board to make a final decision.  The formal structure used by the Medical Board is based upon a separation of powers: enforcement staff is a type of executive (with an executive director above all administrative staff) and the decision-making Board is a form of judiciary, like a judge or jury.

This structure often leads licensees and their attorneys to conclude that administrative courts are "kangaroo courts."  After all, the "complainant" who brings a case, which may be the executive director of an agency or the head of enforcement, is typically the trusted and well-liked employee of the agency head or board that ultimately decides a case.  Although an administrative law judge is impartial, his or her proposed decision can be voided by the agency head or board and replaced with a decision more to the agency head’s or board’s liking.  Although there is some truth in these observations, the reality is more complex.

Due to the high volume of cases, administrative agency heads or boards must, as a practical matter, agree with the decisions of administrative law judges almost all of the time, because the reweighing of evidence required to render a new and different decision taxes the limited resources of the decision-maker.  Also, the Superior Court and Appellate Court are an important check on licensing agencies to ensure they act in a reasonable, deliberate and lawful fashion.  But perhaps most importantly, licensing agencies must carefully balance public protection with the interests of the licensees the agencies regulate.  Although public protection is the stated mission of licensing agencies, an overzealous regulator can cripple the industry it regulates or create unintended results, such as driving significant numbers of individuals to work without licenses.

What I have learned in handling hundreds of licensing matters is that the administrative arena has many traps for unwitting attorneys.  Lawyers accustomed to the impartiality and significant due process protections of Superior Court often fail to understand who the decision makers are and how decisions are made in license discipline litigation.  Administrative law requires a "Goldilocks" approach.  If the lawyer is too aggressive or enjoys early success based upon exploiting legal technicalities or hiding the ball, the administrative process has a way of catching up to and extinguishing such successes through the ultimate power of the agency head or board.  If a lawyer is too passive, concluding that the whole system is rigged and there is no way to win, important opportunities to influence the decision-makers will be lost and the lawyer’s fatalism will breed failure.  Attorneys must be thoughtful, prepared, persuasive and proactive, but also honest, forthright and determined, to achieve the best results in license cases   

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.