Friday, February 20, 2009

Professional License And Disciplinary Defense: Why Hire An Attorney?

Questions: Why Does A Licensed Professional Need A Lawyer In A Matter That Involves Their Board Or Other Disciplinary Agency? Won’t That Professional Know More About His Or Her Profession And Be The Best One To Address The Specific Case Being Investigated?

Answer: For the same reason that that people need lawyers in other matters: knowledge of the law, insight into the process and judgment based on experience. Simply having the medical or professional knowledge is not enough. A good lawyer gives you an outside objective and usually has a great deal of experience with the professional standards to make any response you would prepare or make significantly better.

Remember the value of your license over years and what could happen if you’re placed on probation or if there is some other discipline. We have saved licenses or privileges that were worth millions of dollars over our clients’ work life. Think of your license as a million dollar investment you need to protect.

There is an old saying that "A man who represents himself has a fool for a client — and a fool for a lawyer." Does the old saying hold true even if you're a doctor, nurse, pharmacist and your own Board is asking you for records or to be interviewed? After all, you’re already an expert. This saying is unfortunately all too true.

If you don't think so, ask the lawyers who represent the various boards and bureaus (Deputy Attorney Generals) or the investigators who work for them. We have seen firsthand how the most damaging evidence in a case was obtained moments after doctors, dentists and other professionals appeared before them in interviews and disciplinary and reinstatement proceedings without the benefit of counsel. The board investigators and attorneys have seen professionals make serious mistakes by trying to represent themselves. But that didn't change the fact that the board investigators and attorneys were required to base their decisions on what was actually presented, not what might have been presented.

Why do capable professionals shoot themselves in the foot when they try to represent themselves in matters of board complaints and investigations?

The reasons are rather obvious to those who have worked inside the disciplinary system. Here are some of them:

■ One of the hallmarks of the any profession is independent judgment. A physician, pharmacist, dentist or any other professional cannot see his own problem objectively any more than others can.

■ The most important phase of a disciplinary case is the one that comes first: the response to the complaint or request for records or an interview. Remember: you will have to live with this response or interview for years. Words you write or say can come back to haunt you or be inconsistent with a well-prepared or thought out answer. These inconsistencies could be characterized as “lies” or as not being forthright.

■ Many professionals make the mistake of quickly writing a response on the assumption that they will be given an opportunity to express themselves more carefully and completely if the complaint is not quickly closed. Or the professional agrees to be interviewed without being well-prepared or having an outside professional expert review the file and assist in the preparation. All too often, they find that they are haunted by ill-considered language in the response at every stage of the disciplinary process.

■ Professionals are often busy and they do not spend the hours that an excellent response will require. Sometimes they are offended at having to respond to a seemingly meritless complaint and that comes across in a less than thorough response or one that is later characterized as arrogant. If mistakes were made, these are often not explained or acknowledged in a manner that will best serve the professional.

■ Disciplinary proceedings are unique unto themselves. They are different than civil and criminal proceedings in a number of ways. These cases cannot be treated the same as civil or criminal litigation. Nor can they be treated as something that will go away by just being interviewed without an attorney. By not consulting independent counsel, it is easy for the professional to make bad choices or conduct himself or herself inappropriately in the professional discipline arena.

■ Consequently, the length and detail of the response require the exercise of good judgment, ideally with the assistance of someone who can read between the lines and anticipate the questions of other readers.

■ In civil litigation, one can be aggressive, take depositions and use the discovery tools to put pressure on the other side. In disciplinary proceedings, fighting and being seen as outwardly aggressive can backfire. The best defense is to develop the facts thoroughly, act professionally and fight smart. In many boards (except the Medical Board), any settlement will require the professional to pay the costs of investigation. So one must remember that at the end of the case, you will pay your attorney and the costs of those who were investigating and prosecuting you in a professional discipline case.

■ If there was ever a day when the professional boards and bureaus were just a bunch of "good ol' boys," that day is clearly gone. The Attorney General's Office, State Bar and other agencies are staffed with numerous full-time attorneys who take their responsibilities seriously. They are not hesitant to investigate and prosecute any matter that appears worthy of their attention or that somehow made it to their desk. The way it may have made it to their desk may have not been fair -- disgruntled ex-employee or former patient/client -- and the claims may seem ridiculous to you, but you need to take any complaint seriously.

■ Ask your attorneys tough questions. We encourage you to ask tough questions. When you want to avoid an allegation of professional misconduct, you need reliable answers about how to respond, the process and the rules that apply. When you've already been accused of misconduct, you can't afford mistakes in the conduct of your defense. And when your right to practice or your license is on the line, your lawyer shouldn't be running around in circles. In short, any allegation of professional wrongdoing is a serious matter that requires serious attention.

Any questions or comments should be directed to: Tracy Green is a principal at Green and Associates in Los Angeles, California.  They focus their practice on the representation of individuals, businesses, and licensed professionals in civil, business, administrative and criminal proceedings.


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