The Stages of Professional License Disiplinary Action Proceedings

Professional license disciplinary actions all proceed in essentially the same way. There is a complaint or notification of a criminal conviction or notice of other disciplinary action made to the licensee’s professional board (the “Board”). When the action is triggered by a complaint, there will be an investigation into the allegations, resulting in either no actionable allegation (in which the matter will be closed) or a finding warranting further action. The Board will file a document called an Accusation against the licensee. The licensee can challenge and defend against the Accusation or submit to the allegations. If the licensee chooses to challenge the Accusation, he or she must file a Notice of Defense. The matter will then proceed to an administrative hearing or a negotiated settlement. The Board will impose discipline (or no discipline) based on the outcome of the hearing or settlement.

INTIAL ACTIONS

Board disciplinary actions often begin with an investigation triggered by a complaint made to the Board. Anyone can make a complaint against a licensee alleging professional misconduct or error. The investigation will be conducted by the Department of Consumer Affairs Division of Investigation (DOI). Usually this will include an interview of the licensee as well as review of records, as indicated. If you have been contacted by the DOI for an interview, it is advisable that you contact a professional license attorney BEFORE the interview. You may believe you have done nothing wrong and then find yourself incriminated by the interview in an alleged wrongdoing of which you were unaware. Your attorney can review the complaint and help you prepare for the interview.

If the DOI determines that the complaint is without merit, the investigation will be closed and the licensee will suffer no further action. The investigation is not made public. If the DOI determines the complaint has merit, the Board will file an Accusation against the licensee. The Accusation is a public document

Complaints against the licensee are not the only generators of Board disciplinary actions. It is very common that a disciplinary action will commence after the licensee is convicted of a misdemeanor or felony. In fact, any misdemeanor or felony conviction WILL trigger a Board action. One of the most common criminal convictions that prompt a Board action is a DUI conviction.

If you are a licensee who has been charged with a crime – even if the crime seems minor—it is crucial that you contact a professional license defense lawyer right away. You shouldn’t necessarily rely on your criminal defense attorney unless he or she understands professional licensing law. Many defense attorneys are unaware of the ramifications a criminal plea agreement or conviction could have on the defendant’s license. It is strongly advisable that you either hire a criminal defense attorney with experience and understanding of professional license defense or hire a professional license defense attorney to advise your criminal defense attorney. What may seem like a favorable resolution of the criminal charge can be a detriment in later Board Accusation, which is certainly to follow.

Attorney William Weinberg’s many years of practicing criminal defense in Orange County coupled with his expertise in professional licensing defense informs his consideration of the interplay between the two separate proceedings. He defends his professionally licensed clients with attention to obtaining an outcome to the criminal matter that will offer the best position for negotiating a settlement on the Board Accusation.

Although less common, an investigation may also be triggered if the Board learns of disciplinary action against the licensee in another state or if the licensee was subject to disciplinary action on a different professional license.

THE ACCUSATION

An Accusation is a formal document that states the allegations against the licensee and the respective Business and Professions Code sections allegedly violated. The Accusation will also “pray” (request) for specific disciplinary action, which could range from public reprimand to a revocation of license. When the Accusation if filed, the licensee can either submit to the Accusation or challenge it. The licensee has a short window of time--usually 15 days from the Notice of the Accusation filed— to file a Notice of Defense. The Board will be represented by a deputy attorney with the Attorney General’s Office.

Once the licensee files a Notice of Defense, the Board will provide its discovery on the matter and will request discovery from the licensee. The Board’s discovery will reveal all the evidence against the licensee and is the starting point for developing a defense against the accusations. The defense might consist of providing evidence that firmly disputes the allegations, or more commonly, mitigating evidence designed to convince the Board that the least severe disciplinary action is warranted.

STIPULATED SETTLEMENTS AND ADMINISTRATIVE HEARINGS

While the Board will schedule a hearing in which the licensee and his or her attorney can present evidence and defense argument to the Board, often the matter can be settled in negotiations between the Attorney Generals Office and the licensee’s lawyer. A stipulated settlement, without a hearing, is the least painful option for the licensee and usually results in the best outcome. A lawyer who is familiar with the Board’s disciplinary guidelines can evaluate the licensee’s options and “speak” the Board’s language. The settlement process is most often successful when there is favorable mitigating evidence and the licensee is willing to accept some administrative sanctions.

When the Board is not willing to negotiate or the licensee wants a hearing, an administrative hearing is held before an administrative law judge (ALJ). This is not a criminal proceeding so many of the due process protections afforded to criminal defendants do not apply. However, civil rules of evidence do apply. At the hearing, the licensee’s attorney and the attorney for the Deputy Attorney General will present their evidence and arguments. The ALJ will render a decision within 30 days and the Board will then act on that decision. In some cases, the Accusation will be dismissed. In most cases, the Board will impose a probationary period on the licensee with terms and conditions. In the more serious of cases, the Board may suspend or revoke a license. Any discipline imposed is public information.

CHALLENGING THE DECISION

The licensee may challenge the ALJ decision by filing what is called a Writ of Mandamus (Writ of Mandate) in superior court. This writ, while not technically an appeal, acts something like an appeal in that it asks the superior court to review the ALJ’s decision. There are very specific parameters under which this review may be made—specifically, there must an allegation of factual or legal error or abuse of discretion on the part of the ALJ.

ARE YOU BEING INVESTIGATED BY YOUR LICENSING BOARD OR HAVE BEEN NOTIFIED OF AN ACCUSATION FILED AGAINST YOU? CONTACT WILLIAM WIEINBERG FOR IMMEDIATE HELP.

Orange County professional defense license attorney William Weinberg is committed to obtaining the best outcome in defense of your professional license. You worked hard to get that license, don’t risk your career alone. Mr. Weinberg offers a free consultation and will carefully review the particular issues in your matter and advise you of your options. You may contact him at his Irvine office by calling (949) 474-8008 or emailing him at bill@williamweinberg.com.