Licensed professionals and those with jobs in law enforcement or the types of job that require security clearances suffer more – almost a type of double jeopardy – when they are charged with or convicted of a crime. In some cases, professionals can suffer collateral consequences when they are charged but have yet to be convicted. For example, if a licensed physician is charged with Medi-Cal fraud, he or she will probably be subjected to a temporary suspension and temporary withhold by the Department of Health Care Services even when there is no conviction.
In California, if you have a professional license and plead guilty to a misdemeanor or felony (even one that can be reduced to a misdemeanor and be expunged), it is virtually certain that at some point you will face disciplinary action or investigation against your license arising from the conviction. This does not mean necessarily that your license will be revoked but there is a range of discipline. The level of that discipline may depend on how you handle your criminal case and disciplinary investigation from the beginning.
A recent review of recent Accusations filed by the California Board of Chiropractic Examiners and discipline imposed by the California Department of Real Estate -- just two of many professional boards -- reveal what we have known well from our practical experience: the most common ground for revocation of a license, probation or for even filing an Accusation against a license is a criminal conviction.
For example, out of 33 Accusations filed by the Chiropractic Board from July 1, 2008 to March 30, 2009 - 22 involved criminal convictions. For the Department of Real Estate, over a 3 month period, out of 101 licenses that were revoked, 72 were revoked on the ground that there was a substantially related criminal conviction in violation of Business & Profession Code Section 490 and/or there was a mere conviction of a crime in violation of Business & Profession Code Section 10177(b). For the 31 real estate licenses that were revoked with a right to a restricted license, 23 of those cases involved a criminal conviction. Most other professional boards and bureaus follow this same pattern.
One reason this occurs is that criminal convictions are easy targets for the Board investigators. There's no need to prove gross negligence or engage in a debate among the experts. It is simple to prove up a conviction -- even those that are not related to the professional practice. Most criminal acts involve "moral turpitude" and allow the Boards to look tough on discipline especially when they are not especially devoted to consumer or patient protection or simply do not have the budget to do so.
What are 8 things a licensed professional can learn from these statistics and do if they are facing the potential criminal charges?
First, it goes without saying, avoid criminal charges at all costs! Do not put your license at risk. If you are entering into a business or professional transaction that could expose you to some risk, seek legal advice to ensure compliance with the law. This could serve as a defense later in the event there are charges filed. If you are facing criminal charges or think they are a possibility, do everything in your power with the help of experienced counsel to get the charges dismissed if possible. Civil compromises, deferred prosecution agreements and other mechanisms should be considered if available.
Second, if you are facing a criminal investigation, be proactive at that time. If there is obvious true exposure, obtain experienced counsel and work on reaching the best result possible. Consider the collateral consequences to your professional license in every way possible. In some cases, reach an agreement pre-filing or early in the stages where you can influence the charge. Seek charges if possible that will have the least impact on the license. In cases that will proceed to trial, realize that the consequence of a criminal felony conviction could well be revocation of the license.
Third, do not falsely believe that only prosecutions related to the practice of your profession will result in professional discipline. The reality is that any criminal conviction for any criminal act can constitute professional misconduct. The various boards and licensed discipline professionals will discipline for anything from petty theft (shoplifting) to driving under the influence to domestic violence to tax fraud and business crimes. Disciplinary sanctions will depend on the nature of the crime committed and many additional factors.
Fourth, remember that even if you win your criminal case at trial, the burden of proof is lower at an administrative hearing. You can win the criminal trial battle but lose the war on your license. Winning your criminal case may not make the administrative matter go away. Be prepared for and aware of this fact.
Fifth, while fighting the criminal case, have counsel that will act in a manner that will not jeopardize your license. You also need to act in a manner that does not further harm your chances of holding onto your license or seeking reinstatement at an early time. Do not make any false statements or misrepresentations during proffer sessions, interviews or during testimony.
In California, if you have a professional license and plead guilty to a misdemeanor or felony (even one that can be reduced to a misdemeanor and be expunged), it is virtually certain that at some point you will face disciplinary action or investigation against your license arising from the conviction. This does not mean necessarily that your license will be revoked but there is a range of discipline. The level of that discipline may depend on how you handle your criminal case and disciplinary investigation from the beginning.
A recent review of recent Accusations filed by the California Board of Chiropractic Examiners and discipline imposed by the California Department of Real Estate -- just two of many professional boards -- reveal what we have known well from our practical experience: the most common ground for revocation of a license, probation or for even filing an Accusation against a license is a criminal conviction.
For example, out of 33 Accusations filed by the Chiropractic Board from July 1, 2008 to March 30, 2009 - 22 involved criminal convictions. For the Department of Real Estate, over a 3 month period, out of 101 licenses that were revoked, 72 were revoked on the ground that there was a substantially related criminal conviction in violation of Business & Profession Code Section 490 and/or there was a mere conviction of a crime in violation of Business & Profession Code Section 10177(b). For the 31 real estate licenses that were revoked with a right to a restricted license, 23 of those cases involved a criminal conviction. Most other professional boards and bureaus follow this same pattern.
One reason this occurs is that criminal convictions are easy targets for the Board investigators. There's no need to prove gross negligence or engage in a debate among the experts. It is simple to prove up a conviction -- even those that are not related to the professional practice. Most criminal acts involve "moral turpitude" and allow the Boards to look tough on discipline especially when they are not especially devoted to consumer or patient protection or simply do not have the budget to do so.
What are 8 things a licensed professional can learn from these statistics and do if they are facing the potential criminal charges?
First, it goes without saying, avoid criminal charges at all costs! Do not put your license at risk. If you are entering into a business or professional transaction that could expose you to some risk, seek legal advice to ensure compliance with the law. This could serve as a defense later in the event there are charges filed. If you are facing criminal charges or think they are a possibility, do everything in your power with the help of experienced counsel to get the charges dismissed if possible. Civil compromises, deferred prosecution agreements and other mechanisms should be considered if available.
Second, if you are facing a criminal investigation, be proactive at that time. If there is obvious true exposure, obtain experienced counsel and work on reaching the best result possible. Consider the collateral consequences to your professional license in every way possible. In some cases, reach an agreement pre-filing or early in the stages where you can influence the charge. Seek charges if possible that will have the least impact on the license. In cases that will proceed to trial, realize that the consequence of a criminal felony conviction could well be revocation of the license.
Third, do not falsely believe that only prosecutions related to the practice of your profession will result in professional discipline. The reality is that any criminal conviction for any criminal act can constitute professional misconduct. The various boards and licensed discipline professionals will discipline for anything from petty theft (shoplifting) to driving under the influence to domestic violence to tax fraud and business crimes. Disciplinary sanctions will depend on the nature of the crime committed and many additional factors.
Fourth, remember that even if you win your criminal case at trial, the burden of proof is lower at an administrative hearing. You can win the criminal trial battle but lose the war on your license. Winning your criminal case may not make the administrative matter go away. Be prepared for and aware of this fact.
Fifth, while fighting the criminal case, have counsel that will act in a manner that will not jeopardize your license. You also need to act in a manner that does not further harm your chances of holding onto your license or seeking reinstatement at an early time. Do not make any false statements or misrepresentations during proffer sessions, interviews or during testimony.
Sixth, with the help of experienced counsel, create a strategy to help bolster your professional defense while you defend your criminal case. This may include continuing education, volunteer work and other ways of showing that you are a professional who is valued in the community. Each case is different and there is no cookie cutter approach that works effectively. We like to tell clients that we help them earn the right to say they are sorry to the professional licensing boards and show them that they have learned from this experience. This needs to be done through hard work and not simply promises or letters. Action speaks louder than words.
Seventh, do not submit to interview with any government officials -- law enforcement or board investigators -- without having experienced counsel present and without being fully prepared. This is probably one of the most important points. More cases are damaged by ill-prepared interviews, confessions and misstatements which do more harm than good.
Eighth, a client who represents himself has a fool for a lawyer. Even if you think it is outside of your budget, think about the earning potential of your license over the course of your career and the value. In addition, see if you can at least hire an experienced attorney for objective guidance and advice on the key points and strategies.
Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of licensed professionals and businesses in civil, business, administrative and criminal proceedings.
