Bad Idea to Represent Self before BAR

Every so often, the team at Simas & Associates, Ltd. encounters a new story about a licensee who  undertook to represent himself or herself in an administrative proceeding. The seeming informal nature of administrative proceedings somehow lures intelligent, successful, licensees and business owners into thinking they can represent themselves. Unfortunately, as in the case discussed in this article, this can lead to utter disaster.
They say he who represents himself has a fool for a client. And while we have taken the time to discuss this in a number of law firm blogs, this one contains such a compelling, preventable example we felt the need to share it.

How Customer Dissatisfaction Turned into License Revocation

Our firm recently consulted a very nice successful automotive repair shop licensee with a unique clientele of vintage car owners. As the only such shop in his geographic area, he enjoyed much success and had developed a dedicated customer base. As discussed below, a simple client complaint turned into a license revocation nightmare.
Like all licensing agencies, the Bureau of Automotive Repair (“BAR”) exists to protect the public and receive public complaints –some with merit and some as revenge without merit. In this case, a vehicle owner was unhappy about what the shop owner did and told him regarding new versus refurbished parts on a classic car. The complaint, perhaps neglected by the shop owner, snowballed into a BAR Accusation for violations of the automotive repair law.
The shop owner appealed the Accusation on his own, proceeded to the administrative hearing, and represented himself (Gulp!). He did not entirely understand how to object to evidence or cross-examine witnesses or the serious nature of the proceeding. Of course the administrative law judge issued a proposed decision revoking the shop owner’s license and the BAR adopted the decision several months later. The final decision contained an effective date – the date he would be out of business.
After all of this had occurred, the shop owner finally contacted an attorney to discuss options. At that juncture, the only option was to file a petition for writ of administrative mandate and request a stay to stop the effective date of the revocation and allow the shop owner time to present a case before the court challenging the legal veracity of BAR’s ultimate decision.
Unfortunately, by the time of that call, it was too late for many reasons.

Why it was too late

By the time an agency decides a case, there exists an administrative record whether good or bad. In this case, the record sealed the shop owner’s fate and offered no real basis to challenge the decision. This is true for a number or reasons such as:

  1. The shop owner did not timely object to BAR’s evidence at the administrative hearing and therefore waived the right to do so.
  2. The shop owner did not understand that he needed to present evidence of rehabilitation, mitigation, and good character to offset the penalty and attempt to obtain something less than revocation.
  3. Mitigation evidence would have included letters from customers very pleased with his work who could attest to his character, truthfulness, and veracity.
  4. Not only was the shop owner facing administrative revocation, but there simply was not time to pursue a writ petition unless we could get the court to stay the revocation – a very difficult and onerous task.
  5. To obtain a stay, the shop owner would have to show that he was likely to prevail in the writ petition case and that his ongoing practice would not harm the public. This is difficult to do when a member of the public – his customers – and the administrative law judge in the underlying decision found him to be untruthful.
  6. Due to the immediacy of this situation, there was simply no time for a succession plan where the shop owner could sell his shop, obtain another owner for whom he could work, or otherwise plan for having to suddenly stop his business and stop working on cars.

Of course, hindsight is 20/20; but in many cases like this, revocation can be avoided, at least in favor of a probationary license. As this case did not involve a huge history of discipline or extremely egregious actions worthy of revocation on the first time, we are confident his license would have been saved had he presented a competent defense and portfolio of evidence and testimony demonstrating rehabilitation, mitigation, and good character.
In such a case, our job is simply to be entirely truthful with our client and develop a plan to deal with the revocation and his return to his profession hopefully in several years.
Keep this in mind as a preeminent example of – “please, do not represent yourself.”