Wednesday, February 18, 2009

Professional License Defense: Discipline Based on Criminal Conviction

Persons who require a license for their livelihood and are faced with defending themselves in a civil or criminal proceeding must understand the career implications of resolving such matters. Criminal convictions (as well as adverse civil judgments or settlements) may lead to disciplinary actions by the licensee's governing board.

California statutes provide authority for its numerous regulatory boards to deny, suspend, or revoke a license based upon a licensee's conduct. A licensee cannot be disciplined merely on grounds of "a lack of good moral character or any similar ground relating to an applicant's character, reputation, personality, or habits." (Cal. Bus. & Prof. Code § 475(c)).

However, a license can be denied, suspended, or revoked on any of the following grounds set forth in Cal. Bus. & Prof. Code § 475(a):

(1) "Knowingly making a false statement of material fact, or knowingly omitting to state a material fact, in an application for a license." [This can include failing to disclose an arrest or conviction in the application.]

(2) "Conviction of a crime." [This includes crimes that were expunged and dismissed after completion of probation.]

(3) "Commission of any act involving dishonesty, fraud or deceit with the intent to substantially benefit himself/herself or another, or substantially injure another." [This can include crimes that were dismissed after being filed but where there was no conviction.]

(4) "Commission of any act which, if done by a licentiate of the business or profession in question, would be grounds for suspension or revocation of license." [This means commission of any act specifically prohibited of a licentiate by the profession's governing statutes and regulations.]

[The italics are our comments following the actual language of the statute.]

Even though the above language in Section 475(a) can seem very broad, there are some limitations. A licensing board can discipline a licensee's conduct only where there is a "substantial relationship" between to licensee's fitness to practice his or her profession and the licensee's conduct. Hughes v. Board of Architectural Examiners, 17 Cal. 4th 763, 788 (1988).

This does not mean that the conduct must have occurred during the licensee's work. For example, a physician may be disciplined by the Medical Board of California based upon a conviction for tax evasion. Windham v. Board of Medical Quality Assurance, 104 Cal. App. 3d 461 (1980). Even though the conduct arose apart from the physician's practice, the court found there was a substantial relationship between the physician's conduct (dishonest tax reporting) and his professional duties: "there is the relation between doctor and patient. It is unnecessary to describe the extent to which that particular relationship is based on utmost trust and confidence in the doctor's honesty and integrity." Id. at 470.

Holdings in cases analyzing the "substantial relationship" can appear contradictory. On one hand, a court found that a real estate broker could not be disciplined based upon a conviction distribution of a controlled substance. Brandt v. Fox, 90 Cal. App. 3d 737 (1979). On the other hand, a court found that a real estate broker could properly be disciplined based on a conviction of possessing marijuana for sale. Golde v. Fox, 98 Cal. App. 3d 167 (1979). Some boards analyze what can constitute "moral turpitude" which can be broad in and of itself. Thus, do not assume that a criminal charge that is unrelated to your professional will not matter to the board.

Closer scrutiny of the cases reveals the importance of introducing and creating a record in the disciplinary proceedings showing the licensee in the best possible light. In Brandt, the court found the record demonstrated (a) the licensee's misconduct was isolated and remote in time, (b) the licensee's activity was peripheral to the drug transaction, (c) the licensee was remorseful and had otherwise acted exemplary, (d) and the misconduct was unlikely to recur. Brandt, supra, 90 Cal. App. 3d at 747.

In Golde, the court found that the licensee's conduct was more egregious than that in Brandt (the licensee was caught with 800 pounds of marijuana) and that the licensee had unwisely attempted to rationalize his misconduct as acting "out of friendship and a spirit of adventure." Golde, supra, 98 Cal. App. 3d at 183.

If investigated for or charged with a crime, a licensee would be well-advised to seek the advice of an attorney specializing in professional license defense to minimize potential adverse impacts on their future employment opportunities. For example, if one is charged and there are adverse facts, it may be possible to select a charge for a plea bargain that is less likely to cause discipline problems (for example, selecting a charge that does not have fraud as an element).

If there is a civil case where criminal charges could be filed or complaints to a licensing board could be made, a licensee's approach should be different since there is a form of "double jeopardy" when you have a license. Remember to look at the "big picture" and see all the collateral consequences that can occur to your license or ability to be licensed.

In addition, if you are applying for a license and disclosing your background to the licensing board, look up any old arrests or cases you may have had. Failure to disclose an old DUI or misdemeanor that you thought was not a true "conviction" could cause the agency to refuse to license you on the ground that failed to state a material fact in your application.

This is an outline of the issues to think of where a professional has a prior criminal charge or is facing a charge or claim that has criminal allegations. Each case will be highly dependent on the facts but excellent legal representation can help bring out the more favorable facts and develop a record that will help obtain a more favorable result with a licensing board.

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 and providers in civil, business, administrative and criminal proceedings.


DISCLAIMER: Green & Associates' articles and blog postings are prepared as a service to the public and are not intended to grant rights or impose obligations. Nothing in this website should be construed as legal advice. Green & Associates' articles and blog postings may contain references or links to statutes, regulations, or other policy materials. The information provided is only intended to be a general summary. It is not intended to take the place of either the written law or regulations. We encourage readers to review the specific statutes, regulations, and other interpretive materials for a full and accurate statement of their contents and contact their attorney for legal advice. The primary purpose of this website is not the commercial advertisement or promotion of a commercial product or service and this website is not an advertisement or solicitation. Anyone viewing this web site in a state where the web site fails to comply with all laws and ethical rules of that state, should disregard this web site.

The information provided on this website is for informational purposes only. It is not intended to create, and does not create, a lawyer-client relationship with Green & Associates, Attorneys at Law. Sending an e-mail to Tracy Green does not contractually obligate them to represent you as your lawyer, or create any type of client relationship. No attorney-client relationship will be formed absent a written engagement or retainer letter agreement signed by both Green & Associates and client and which specifies the scope of the engagement.

Please note that e-mail transmission is not secure unless it is encrypted. E-mail messages sent to Ms. Green should not include confidential or sensitive information.