By: NICOLE IRMER
Whether in the criminal or civil arena, representing a state licensed professional presents some problematic issues for an attorney representing his/her client’s case. As a criminal practitioner, you may have been in the position of presenting an offer to a client after negotiating a plea bargain, and then the critical question is asked:”Will this affect my license – or my opportunity to get a license — my livelihood ?!?”
Even in the civil arena, lawsuits and arbitrations alleging fraud, misappropriation of funds, or breach of fiduciary duty can also impact a professional’s license or the ability to get one as well. For example the Department of Real Estate (“DRE”) outlines grounds for discipline for its members and includes such civil misconduct, and the duty to report the same. (Cal Bus. & Prof. Code §§10177.5, See also, §802, requiring doctors to report settlement, judgment or arbitration awards.)
In criminal cases, there may be competing interests between the protection of the professional license and the wisdom to accept a deal stricken with the prosecutor. For example, a plea bargain that allows for no jail time in exchange for a guilty plea may be too tempting to pass, with potentially harsher sanctions looming in the future. After balancing the pros and cons of the plea bargain with the client, the criminal case resolution may dictate that the client accept the deal to protect his or her freedom, although there may be a potential (unavoidable) impact to his or her license. Therefore, while managing a professional’s criminal matter, the criminal practitioner must be mindful of how the relevant licensing board will respond.
Criminal cases often involve alcohol or drug abuse (such as, driving under the influence, use of controlled substances, or conduct, where the underlying problem exposes substance abuse.) In such cases, it is imperative to get the professional involved in an appropriate treatment program as soon as possible. (Timothy Aspinwall, Representing Health Care Professional in Disciplinary Action: Containing the Collateral Damage (2008) ABA, The Health Lawyer.) Aside from the obvious benefits of effective treatment, participation in a program provides mitigating evidence when negotiating with a professional’s board. (Id.) In cases involving drug abuse, criminal attorneys should be cautious about advising the client to plead no-contest with deferred entry of judgment (also known as DEOJ or PC §1000.) Although a DEOJ or a no contest plea may be an enticing resolution in a criminal matter, a no contest plea with a grant of probation is considered a conviction by the licensing agency, triggering possible action. (See, Cal. Bus. & Prof. Code §7.5, defining “conviction” to include a “no contest” plea; See, e.g. Cal. Bus. & Prof. Code §2765 governing discipline for nurses who plead no contest.) At times, even when the disciplinary action is resolved with the Board on terms that allows the professional to retain his or her license, a disciplinary record with the Board can have collateral impact with other agencies that the professional is affiliated with. For example, the Medical Board defines a no-contest plea as a conviction. (Cal. Bus. & Prof. Code §2236 (d).) This conviction may exclude the health care professional from working under Medicare and Medicaid programs. (42 USC §1320a 7(i).) Further, doctors may have to contend with a DEA revocation proceedings of prescription writing privileges after a conviction, and sometimes as early as the arrest. (21 USC §824(a).)
Licensing applications usually require the disclosure of criminal convictions and some require the disclosure of certain civil judgments. But, professionals who already have a license may also have a duty to self-report convictions and certain tort actions against them. California physicians, for example, must self-report all criminal actions to the Medical Board. (See Cal. Bus. & Prof. Code §§800-800.9, and §802.) If a professional, who has a duty to self-report, does not make the report, he or she may receive more severe discipline due to the separate violation. Most professional boards receive notification from courts when a licensed professional is convicted. Identifying information (i.e., fingerprints) can be cross-indexed with professional directories to assist the Board(s) to receive notices of criminal convictions. Therefore, it is better to be proactive and truthful if the Board is going to independently discover the conviction anyway (but of course disclosure of statements should be submitted only after review by an attorney familiar with license law.) A proactive disclosure where required can mitigate or possibly even prevent discipline against the licensee. A proactive disclosure that was not required, serves only to “kick the sleeping dog.”
When applying for or renewing a professional license, the Agency’s application will inquire about criminal convictions. The client must disclose the conviction, even if it has been expunged pursuant to Penal Code §1203.4. California’s expungement statutes require disclosure of an expunged conviction in license applications. (Penal Code §1203.4.) Failure to disclose a criminal conviction, despite how old or trivial it seems, could lead to a Denial of the Application. The failure to disclose could also bring the potential of disciplinary action with regards to the applicant’s truthfulness and veracity because the application has been signed under the penalty of perjury. The conviction itself might not derail the license; but the failure to disclose the conviction could be fatal to obtaining the license.
In California, the Department of Consumer Affairs (“DCA”) oversees licenses regulated by over 40 different Boards including acupuncturists, nurses, the Medical Board for physicians and surgeons, and respiratory care practitioners to name a few agencies. An investigation by the licensing agency generally commences the process whether to start disciplinary actions. If the agency decides to move forward with the denial, suspension or revocation of a license, a report is submitted to the California Attorney General, if the agency is governed by the DCA. Departments such as the Department of Insurance and Department of Real Estate are represented by in-house counsel operating under separate but similar process. The objective of these agencies is to safeguard the public and provide for patient safety. Each licensing agency must develop criteria to guide the determination of whether misconduct is substantially related to the licensing activity. (Cal. Bus. & Prof. Code §481), and therefore warrants suspension/revocation.
Criminal convictions that are “substantially related” to the qualifications, functions, or duties of a professional can trigger discipline. This test is very broad. The Business and Professions Code codifies standards in section 480 (with regards to license denials) and section 490 (for suspension or revocation proceedings). The Boards have the power to discipline members for drug related transgressions including “using drugs or alcoholic beverages in a way dangerous or injurious to oneself, any other person, or to the public.” (Cal. Bus. & Prof. §§2239 and 2762 (b)) for physicians and nurses respectively.) The transgression can have occurred on the professional’s personal time without patients or clients present. For the Nursing Board and/or the Medical Board a common “substantially related” conviction is “typically” one that involves alcohol or controlled substances conviction regardless of whether it is a felony or a misdemeanor. For the health care professional, a DUI triggers an investigation and potentially discipline of the licensee as well as public intoxication convictions. The Board regards these actions as “unprofessional conduct.” DUI convictions and guilty pleas are regarded as conclusive evidence of “unprofessional conduct.” (See Cal. Bus. & Prof. Code §§2761 (f) and 2236 for nurses and doctors respectively.)
Even when a conviction is “substantially related” to a professional’s qualification, a licensee still has due process right to present evidence of rehabilitation and mitigation at an administrative hearing. (Govt. Code §§11400 –11470.50; and §§11500-11529.) With regards to an application denial, Cal. Bus. & Prof. Code §480 provides that “no person shall be denied a license solely on the basis of a conviction if the person has obtained a certificate of rehabilitation or has met the rehabilitation requirements developed by the [respective] Board.” Each Board is required to develop the rehabilitation criterion that is applicable to its members to aid it when considering the denial, suspension, or revocation. (Cal. Bus. & Prof. Code §482.)
So if a professional receives a conviction it does not necessarily mean that his or her career is over. Each Board reviews matters on a case-by case basis, considering factors such the nature of the act, harm or potential harm to the public, prior criminal and/or disciplinary history. Other factors considered: 1. the passage of time since the conviction; 2. successful completion of probation; 3. remorse; 4. change in attitude; 5. expungement of the conviction; 6. alcohol or drug rehabilitation; 7. completion of formal education; 8. stability of family life; 9. correction of business practices; and 10. community involvement. (See e.g., 10 Cal. Code Regs. §§2911-2912 ( DRE); 16 Cal. Code Regs. §99.1 (Board of Accountancy); and 16 Cal. Code Regs. §1309, §1360.1 (Medical Board). )
When developing a discipline order, the agency will draft an order to aid in the rehabilitation of the licensee wherever possible, consistent with patient safety. (Cal. Bus. & Prof. Code §2229(b) (Medical Board).) One of the effective ways to mitigate or possibly prevent discipline is to clearly demonstrate to the Board that the client is sufficiently “rehabilitated” to eliminate the risk to patient and public safety. This is where much of the legal advocacy occurs in professional licensing defense.
In some cases licensing ramifications are unavoidable. But if the criminal and/or civil attorney remain cognizant of where there is potential for professional discipline and act early and in concert with licensing defense concerns, then it may still be possible to limit the discipline and allow the professional to continue in his or her chosen career despite a criminal conviction and/or a civil lawsuit