The key for an attorney handling a client’s licensing issue is to get involved ASAP! Unfortunately, the attorney has virtually no control over when he or she first has the opportunity to become involved. Often it’s only when the investigation has gone too far to prevent formal charges does the licensee finally, and often in a panic, contact an attorney.
Hopefully, you are one of the lucky attorneys who gets on board early, as that gives an attorney many advantages:
- Attorney may influence agency. Given information from the client and his or her attorney, the agency may never file formal charges; it may be convinced to take no action at all or to take only informal action. Even if formal charges are filed, some of the charges and allegations that might have been included in the pleadings may be eliminated.
- Attorney may protect licensee. The attorney may preserve the client’s or another’s constitutional rights and privileges by, for example, reviewing subpoenas or being present during interviews. Note that the Administrative Procedure Act (APA) (Govt C §§11340–11529) requires that the respondent be advised about the right to counsel in formal proceedings, but before formal proceedings are filed, the agency has no duty to advise a party that he or she is entitled to representation by counsel.
- Attorney may obtain more and earlier information. Early involvement generally gives the attorney and his or her client a better sense of the nature of the charges to be filed. This will give the attorney a chance to undertake early damage control, including corrective or rehabilitative action that may help minimize the discipline eventually imposed.
A licensee generally learns about an agency investigation from the agency itself. The licensee may also anticipate an agency investigation, e.g., if the licensee is convicted of a crime, pays a civil judgment in a tort action. A licensee who is disciplined in another state can expect the equivalent California agency to learn of it and take action.
As soon as you’re retained by the licensee (even if not as early as you’d like) start with these three steps:
- Verify facts with witnesses. Verify the key facts provided by your client with other witnesses and consider getting witness statements from them. Because written witness statements must be turned over to the other side in discovery, you may want to keep the statements within the parameters of your work product as a tactical matter. But if you believe that the witness’s testimony should be preserved for the hearing, consider taking the witness’s deposition or formalizing the statement in the form of a declaration, especially if the statement may assist in settlement discussions.
- Get information from the agency. Initiate discovery requests immediately. Obtain any written or taped statements made by your client in the course of any investigation the agency had conducted before initiating formal action against his or her. In addition, get the agency’s table of penalties—you can do this by a simple request because the information is a public record. Information in the table of penalties is essential for any defense based on disproportionate discipline or discriminatory application of rules and regulations against your client.
- If a criminal action is possible or pending, get criminal defense counsel on board. If there’s any possibility that your client’s alleged conduct also constituted a crime or if there is a criminal action pending your client should retain experienced criminal defense counsel. Keep in mind that criminal defense counsel will mainly focus on resolving the criminal charges, without necessarily considering the potential effect on a professional’s career or license. So make sure that criminal defense counsel are fully informed of the potential disciplinary consequences of a conviction or plea bargain, and work closely with them to minimize any adverse collateral consequences of the criminal proceedings.
For everything you need to know about handling an action before an administrative agency, including the rights and options of licensees, turn to CEB’s California Administrative Hearing Practice, chapter 4.
Related CEB blog posts:
- Seven Key Issues in Handling a Professional License Discipline Case
- Expertise by Association
- Should I Go for (Wr)it by Noticed Motion or Alternative Writ Procedure?
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