There are a vast number of professions that, in California, require a license, certificate, or registration from a state regulatory agency, often a professional board or bureau, in order to be practiced. These professions include physicians, surgeons, registered nurses, pharmacists, real estate agents, and others. The stated purpose of the agencies, most of which operate under the Department of Consumer Affairs, is to regulate people who practice these professions to ostensibly protect consumers from harm.
If you belong to any one of these professions, you need to know that each board, bureau, or committee that regulates your profession has specific requirements that must be met in order to obtain and/or retain a license. These requirements apply not only to certain technical, educational, or training requirements, but usually extend to certain ethical and character standards too.
Unfortunately, there are occasions where an event occurs that threatens to jeopardize your license. Specifically, a licensee may find himself or herself facing disciplinary action from the regulatory agency for:
- Professional misconduct;
- Violation of a statute or regulation that governs his or her profession;
- A criminal conviction for conduct not directly related to the profession;
- Sexual improprieties with a client, customer, or patient;
- Professional negligence;
- Substance abuse;
- Ethical violations;
- Violating an established standard of care;
- Consumer complaints regarding competence or dishonesty;
- Malpractice; and
- Other claims.
When these issues arise, California state agencies cannot simply revoke a professional’s license. Instead, licensees have due process rights—that is, no government agency may deprive an individual of their license without sufficient notice and a right to a hearing. Licensees are further entitled to defend themselves in the adversarial proceedings before the relevant body—usually the Office of Administrative Hearings—and to obtain discovery, cross-examine witnesses, and present evidence.
It is Critical to Retain the Services of a Professional License Defense Attorney to Successfully Protect Your License
In administrative hearings, regulatory agencies advocate for the public and argue from a position that is clearly adverse to the licensee. And, because the agency has the power to completely revoke a license and potentially deprive you of your ability to earn a living from your chosen profession, these proceedings may sometimes feel like a criminal prosecution to the licensee who is being investigated. Unfortunately, while a criminal defendant is given the utmost legal protection in terms of constitutional rights, procedural rights, and a high standard of proof, defendants in administrative hearings have fewer procedural and substantive protections.
Generally, state-issued licenses are regarded as privileges, rather than rights, and a potential penalty for the licensee is not going to prison, but rather the loss of the privilege. The license is not the licensee’s property, but rather, permission from the state to engage in a business after meeting specific qualifications. Defendants therefore have less protection from a governing state agency to retain a license than a criminal defendant would have to retain his or her freedom:
- In a licensing case, there is no jury;
- There is no right to free counsel if you cannot afford one;
- You must testify, if called upon to do so—there is no right to remain silent;
- The regulatory agency has sole discretion to decide to pursue a case, no matter how flimsy the evidence;
- The Administrative Law Judge (ALJ) who hears the case will render a decision, but the agency in question is free to accept, modify, or reject the ALJ’s decision, and render its own;
- The standard of proof is not “beyond a reasonable doubt,” but, depending upon the license, something less;
- A licensee may be required to pay the board or agency for its attorney’s fees and costs.
Given the hurdles outlined above, the question is: how do you defend yourself in a professional license hearing? Surprisingly, it is possible to successfully defend your license from suspension or revocation or other disciplinary action, and even to prevail in an administrative hearing. However, your success often depends upon retaining a qualified professional license defense attorney to advise, assist, and defend you, and to do so as soon as you are aware of any problem that might jeopardize your license.
The Attorneys at Alin Cintean, Attorney at Law and Richard Dudek, Attorney at Law Understand What it Takes to Successfully Defend Your License
The purpose of a regulatory agency’s disciplinary action is not to punish the licensee for any given wrongdoing or breach of duty, but to protect the public from incompetent, impaired, immoral, or unethical licensees.
The standard usually applied by the agency in such cases is basically: whether the infraction or behavior in question is such that it demonstrates “present or potential unfitness” of the professional to perform the functions of the profession that is authorized by the license or certificate “in a manner consistent with the public health, safety, and welfare.” For example, any actions that demonstrate dishonesty or moral turpitude—such as a conviction for fraud, embezzlement, or perjury—will also, for agency purposes, demonstrate lack of fitness for many regulated professions. However, there are many other types of conduct which, while not admirable or perhaps even ethical, can nevertheless be shown to be insufficient to warrant disciplinary action because they do not evidence a threat to the consumer.
As professional license defense attorneys, we focus on this key issue. Our job is not necessarily to defend you from a factual allegation—although that may be necessary—but to demonstrate that you are fit to practice your profession, and to demonstrate that you do not present a threat to the health, safety, or welfare of the consuming public.
For example, we may be able to show that the conduct which prompted the hearing, such as a criminal conviction, is not sufficiently related to your fitness to perform your job that it warrants any or severe disciplinary action. In addition, because remediation, remorse, and/or rehabilitation play an important part in an agency’s decision-making process on a license review, we can also advise you regarding what affirmative steps you can take—such as undergoing treatment or further training, or providing restitution to an injured party—to argue or demonstrate that, regardless of any conduct that reflects negatively on your capabilities, you do not present a potential or future threat to the health, safety, or welfare of the public.
As experienced administrative law attorneys, we know that the agency has the ultimate authority over your license regardless of the decision rendered by the ALJ. Accordingly,
We can advise you about the particular agency’s priorities and concerns and how it operates, and help you to work within the agency system to do what is necessary to avoid loss of the license or receiving a severe disciplinary measure;
Some agencies are more likely to adopt an ALJ’s decision while others tend to render independent decisions, and we can help fashion your case and argument to account for this subtle distinction;
We know how the administrative system must operate by law, and we can identify where a regulatory agency may have failed to follow its own rules and procedures, or where it engaged in conduct that was fundamentally unfair, which can foreclose the ability of the agency from taking any adverse action against you or require a reviewing court to vacate any adverse decision or action taken by the agency;
We know how to make sure that the administrative record for your hearing is complete, to afford you the best opportunity for reversal on appeal should you receive an adverse decision from the regulatory agency; and
If necessary, we can pursue the appeal of your case through a Request for Reconsideration from the agency or subsequently through a Writ of Mandate from California Superior Court.
Unfortunately, the vast majority of licensees neglect to retain an attorney to defend them when they are faced with an official accusation. They often fail to realize that they need not meekly accept any discipline meted out by a regulatory licensing agency, and soon confront the problems that arise when those disciplinary actions show up on their records, permanently—accessible to any consumer with an Internet connection. When your livelihood is on the line, make sure that you protect your license with the means at your disposal, and that means retaining the services of a professional license attorney who understands what is at stake, how the system operates, and what the agency may or may not do.
The license defense attorneys at Alin Cintean, Attorney at Law and Richard Dudek, Attorney at Law are available to assist and represent you in adversarial administrative law hearings before California’s professional licensing boards, bureaus, and committees. We have offices conveniently located in both San Francisco and Contra Costa County. Don’t leave your future to chance; call our San Francisco office at (415) 946-4020, or our Contra Costa office at (925) 335-6444, or use our online inquiry form.