Mitigation evidence, in the civil lawsuit realm, is evidence used to thwart a potential affirmative defense of the failure to limit ones damages. This evidence is done to demonstrate to the opposing party and/or adjudicator of your dispute that once you became aware of the injury, damage, or problem, you took reasonable steps to limit how far that injury, damage, or problem went.
Mitigation evidence in the administrative hearing realm – and in particular, professional license defense – is evidence used to show that the underlying act upon which the licensing agency seeks to discipline has already been voluntarily addressed by the licensee. You are attempting to eliminate risk: risk in the eyes of the licensing agency that you will ever engage in the prior, bad conduct again. So, you need to put on good evidence that such is not the case and that you are no such risk. Depending upon the allegation that has resulted in a professional license defense dispute, the mitigation evidence can be any number of items: concluding a harmful relationship, therapy/counseling, restitution, stopping a particular offering, obtaining more education, etc.
Competency to practice is the most common aspect mitigation evidence may be used in a professional license discipline matter. And the process of evidencing one’s ability to practice in a particular field and can be done several ways. For instance, our physician clients are asked to attend continuing education courses that counter the allegations of the disciplinary action. A physician being disciplined for poor record keeping will be asked to attend a record keeping course. The certificates of completion evidence their ability to practice medicine and further show the Medical Board of California they are not a danger to the public. Another example would be for any professional who faces discipline due to a criminal conviction. In such an instance, we would find an appropriate continuing education course for the professional that address ethics and boundaries.
However, just attending courses is not the only way. In fact, attendance at the aforementioned courses can be expensive and, occasionally, do not adequately evidence the licensee’s ability to carry out his/her profession. All licensing agencies have their own respective goals and requirements related to their particular practice. And, specifically, all are required to publish criteria for demonstrating rehabilitation, mitigation, and good character. Nonetheless, a common, overarching goal of each agency is to ensure the public’s safety. So, any type of evidence that can demonstrate one’s ability to practice their profession safely is relevant and useful in their defense.
So, another great way to show a disciplinary agency that the safety of the public will not be harmed is through letters of recommendation from co-workers, colleagues within the field, acquaintances or other community leaders. The goal is to have these people vouch for your ability to safely practice your profession. Keep in mind that it is imperative you inform everyone interested in writing a letter of recommendation the circumstances surrounding the disciplinary proceeding. And make sure that the letter writer incorporates that knowledge into the contents of their letter (e.g. “I am aware John Smith is facing an Accusation from the Board of Accountancy for a criminal conviction substantially related to the profession of being an accountant…”) Not doing so will degrade the usefulness of the letter – think about it, how can an individual testify to your abilities in your profession if he/she has no idea they are already being questioned? So, in order to be credible it needs to read credible.
Individuals and/or businesses facing disciplinary action are generally facing revocation of their applicable license, which has significant ramifications, the most obvious of which is the ability to earn a living and provide for his/her family. Fear of losing one’s livelihood is something we all too often face in our practice, but defending against that outcome can be done with targeted and diverse mitigation evidence. Hopefully this provides you with some guidance as it relates to what can be used to evidence one’s ability to practice his/her profession.
Sasha G. Aguilar Governor Gavin Newsom signed Senate Bill 425 (SB 425) into law on October 12, 2019. This codified Business and Professions Code section 805.8, regarding professional reporting. As of January 1, 2020, when Read more…