There are many reasons to hire a lawyer which we discuss with clients all of the time. But lately we have run into a number of California Bureau of Real Estate licensees who have made the fatal decision to represent themselves at their administrative hearings involving a disciplinary action known as an Accusation. Perhaps because real estate licensees deal with real estate law, contracts, and formal rules, they believe they can simply handle a simple administrative hearing. From our experience, including trying to pick up the pieces from cases where our clients have tried to represent themselves, this could not be farther from the truth.
This article highlights the top ten reasons why a Bureau of Real Estate licensee needs to hire experienced, competent, and dedicated legal counsel.
- Perspective – Everyone has heard the saying that “he who represents himself has a fool for a client.” The reason for this saying is a licensee who represents himself or herself at a Bureau of Real Estate hearing, cannot possibly have the perspective on the case that an outsider can. Many ties licensees attend administrative hearings thinking they will just be able to “work things out” with the other side. And we have even seen cases where BRE counsel tells the licensee “it is no big deal,” only to find out after the hearing that the licensee’s license is revoked. When you are the center of the controversy, you cannot possibly have the proper perspective to evaluate the situation.
- Experience and Knowledge – Real estate professionals are experts in their fields; so are experienced licensing attorneys. While a licensee representing him or herself is very likely doing so in his or her first Bureau of Real Estate hearing, that is typically not the case for many licensing attorneys. Not only do licensing attorneys know the law, they also know the procedures, how the hearing will go, the judge, who goes first, etc. – all of the things a licensee does not know.
- Making a Record – Whether representing a client in court, in an administrative hearing, or other tribunal, the attorneys at Simas & Associates, Ltd. have two goals. First, we try to win the case. But we always make a record for appeal or a writ of administrative mandate. In many of the cases we have seen lately where our clients have represented themselves, the Bureau of Real Estate or the Administrative Law Judge have engaged in some biased or illegal action on the record which, if properly objected to, could constitute grounds to overturn any license discipline. But if no objection is made, then the objection is waived.
- Objecting to Evidence – While the rules of evidence in an administrative hearing are relaxed from those in a court of law, the law is quite clear that a licensee who does not object to evidence waives the right to do so later. Again, licensing attorneys are experienced at admitting evidence, objecting to evidence, and knowing what evidence the Administrative Law Judge will consider in deciding a case.
- Keeping Bureau Counsel at Bay – In reviewing the administrative records of recent cases where clients have represented themselves, we have found the Bureau of Real Estate’s counsel to be very aggressive and to have literally run over our clients and others who have chosen to represent themselves. The mere presence of an experienced attorney with whom the Bureau of Real Estate counsel is familiar, will keep the Bureau’s counsel at bay and make them actually prove their case rather than running over the licensee.
- Protecting the Licensee’s Rights – The Administrative Procedure Act provides licensees with a number of rights in administrative hearings. These include the opportunity to subpoena witnesses, to present testimony and documentary evidence, to confront and cross examine witnesses, to clearly understand and know the charges against the licensee, and other rights related to an administrative hearing. Without an experienced licensing attorney, licensees are often unaware of their rights and do not know how to enforce them. Instead they go to hearing and do not avail themselves to the opportunity to subpoena witness, introduce evidence, obtain discovery from the other side, etc.
- What About Settlement? – Having handled hundreds of Administrative Licensing cases, our law firm is familiar with the terms and conditions upon which licensing agencies, including the Bureau of Real Estate, settle cases. Other licensing attorneys probably have a similar perspective. And just because it is the day of hearing, it is not too late to settle. Moreover, Simas & Associates, Ltd., in trying to tailor its legal representation to the needs of our clients, most often tries to negotiate settlements long before the hearing date. Surprisingly, licensing agencies will resolve many cases with probationary or restricted licenses, especially if we provide proper evidence of remorse and rehabilitation.
- Continuing the Case – Even at a hearing, a continuance may be proper when a subpoenaed witness will not show up, when another witness does not show up, or when the Bureau of Real Estate counsel presents a surprise witness not previously disclosed. There are numerous reasons for which a licensee may be entitled to a continuance or an additional day of hearing to present his or her case. In a recent licensing case, because the licensee represented himself, the Administrative Law Judge refused to allow further additional testimony because he could not articulate good cause for an extra day of hearing.
- Evidence of Rehabilitation, Mitigation, and Character – Nearly every licensing agency, including the Bureau of Real Estate, expects a licensee to take responsibility for his or her actions and present evidence that whatever transgression that caused the accusation or disciplinary action to occur has been resolved. Time after time we see licensees represent themselves, especially before the Bureau of Real Estate, and bury themselves by failing to take responsibility for their actions and failing to demonstrate rehabilitation, mitigation and resolution of any issue that caused the Bureau concern. They get their licenses revoked.
- Expert Witnesses – Many types of cases require the use of an expert witness such as an auditor or accountant in trust account cases, a therapist or counselor in matters involving certain types of convictions or other actions such as substance abuse, or even the testimony of an expert in real estate law or procedures to be willing to supervise a client while on a restricted license. Licensees who choose to represent themselves are not experienced in locating experts, retaining experts and then utilizing them at hearing for their maximum benefit.
At Simas & Associates, Ltd. we want our clients to avoid these commonly occurring pitfalls. This is one of the main reasons we offer a free initial 30 minute consultation. Call us at 888-999-0008 and see for yourself how we can help you in protecting your real estate career and livelihood.