This blog entry is a message to all types of licensed professionals who are responding to inquiries, investigations or otherwise communicating with their respective licensing board, bureau, or department. Specifically:
PLEASE DO NOT TRY TO DEAL WITH AN ADMINISTRATIVE LICENSING AGENCY ALL ON YOUR OWN!
Of course, you can. However, you must understand that you do so at your own risk. Over the years, our law firm has had numerous clients who dealt with licensing agencies on their own without legal counsel. They may have tried to go it alone as far as they could without seeking assistance. Or, they initially sought assistance, got partial advice, but turned tail when they were quoted legal fees, and then did their best.
Unfortunately, doing their best was not nearly enough. In fact, in almost all of the cases we have been confronted with this year, the client has harmed his or her chances of success in the matter hand, implicated oneself in another, far more severe matter, or cause irrevocable damage to their freedom to seek reinstatement at a later date. This issue has reached a new and serious height of concern.
The best way to illustrate the devastating effect these licensees face is with the following real-life examples:
- The agency representative or lawyer tells you: “You don’t need to hire a lawyer.” – Not a month goes by where prospective clients advise us that the investigator for a healthcare licensing board or even the staff counsel or deputy attorney general representing the Board have told them “you do not need to hire a lawyer.” In a recent Medical Board of California investigation case, the Board’s investigator actually told a physician that a tape recorded investigative interview was just a “quick meeting to ask the doctor some questions.” But what the investigator failed to say was that the interview was being taped for later use at a hearing in the case.
- A doctor signed a settlement without consulting a lawyer. – In a number of cases, the licensing agency’s attorney may try to settle the case directly with the licensee who is unrepresented by legal counsel. While this seems friendly and informal, it can have a devastating effect. Recently, our law firm received a call from a doctor who signed a stipulated settlement for a probationary license based upon multiple driving-under-the-influence (DUI) convictions. While at first blush this sounds like a pretty good deal, one of the key terms of the license probation for five (5) years was supervised practice which meant the doctor was going to lose his job and make re-employment elsewhere next-to-nearly-impossible. And because the decision had been adopted by the licensing board as final, there was no way to challenge it for at least one (1) year from the date of the adoption of the decision. The doctor was stuck with this term of probation and had not realized it.
- Making admissions or providing too much information. – Much like criminal attorneys, licensing attorneys do not like their clients engaging in a conversation with any licensing board investigator without legal advice and counsel, if not representation. In fact, we strongly advise against it. Given that the standard for license discipline often involves convictions or actions that are “substantially related to the practice” of the profession, a simple conversation between a licensee and an investigator or even lawyer for a licensing board can turn something unrelated to the practice into something that is “substantially related to the practice.” Before providing any information in writing or verbally to a licensing authority, especially in response to an investigation, an analysis of the Board’s substantial relationship criteria, statutes, and regulations should be done. One cannot communicate effectively to a licensing board without knowing exactly what the board’s issues are and how they will be used against you.
- Collateral consequences. – Even clients who indicate they just want to surrender their licenses and thus want to communicate directly with the licensing boards are missing part of the big picture. Employment, immigration status, licenses in other states, and board certifications are at risk based on action by a California licensing board. Even a client who wishes to surrender his or her license must do so by agreement with the Board or its counsel. Just walking away will result in all charges being admitted and significant negative collateral consequences. While it does not seem apparent, a client willing to surrender his or her license still likely needs to consult legal counsel to do so.
- Accepting the findings of the Board’s retained experts. – Licensing Boards oftentimes retain experts to review the work of the underlying licensee to determine if they are meeting the appropriate standard of care. These determinations are often included in the investigation findings or as part of the notice of disciplinary action. Upon receipt, many licensees just accept the expert’s findings as final and figure that they “lost”. However, what many licensees do not realize is that the expert is merely providing an opinion. And that opinion is on behalf of the underlying agency who wants to subject you to discipline. Thus, their “opinion” could very well be wrong, incomplete, or in contention with other, more accepted, complete, or correct opinions. And all it takes is finding the right expert to opine on the matter and contest the licensing board’s expert’s findings to secure a better, less severe discipline, if not complete exculpation.
- Accepting settlement terms as “typical”. – Attorneys for the different licensing boards oftentimes indicate to unrepresented parties that a settlement offer on discipline is typical for the underlying alleged misconduct. However, what unrepresented parties often do not know is that such a statement can be corroborated or proven false. Most licensing boards have disciplinary guidelines which assess minimum and maximum disciplines for offenses. Furthermore, many licensing boards also have public records that are available to help an individual determine whether the most recent cases that resolved or where discipline was imposed contained the same type of discipline or probation terms.
With the thousands of calls and inquiries we receive every year, many of the above scenarios are presented to us. And all of the above could have been avoided.
So, please, at a minimum, contact an experienced attorney in administrative law or professional licensing defense when facing an investigation, Accusation, or Statement of Issues. Some even offer free and confidential initial consultations. At a minimum, they should be able to explain to you what is happening, the consequences you are facing, and options for moving forward with your matter.
Given what is at stake – your livelihood, reputation, and goodwill in your profession – you owe it to yourself to at least make sure that you have your ducks-in-a-row. And even if you decide to turn elsewhere, checking-in with an attorney is a good first step to make sure that you are fully informed about the consequences you face, whether good or bad.