Los Angeles Area Insurance Company Owner Pleads Guilty to Misdemeanor for Allowing Unlicensed Employee to Advise Clients About and Sell Insurance

Insurance agents are required to be licensed. In an unusual case for criminal prosecution, an owner of an insurance agency and two of his employees were prosecuted for allegations arising from the alleged the unlicensed selling of insurance. 

This is a case where some of the charges alleged arose out of the response to the investigation (providing false information and hiding unlicensed activity). Another teachable moment in this case.

The case began in response to a complaint to the Department of Insurance (DOI). DOI investigators investigted whether Lindhl Lucas, owner of Lucas Insurance Services, allowed and encouraged employees to advise clients about insurance and sell insurance products without proper licenses. At this point, it appears that Mr. Lucas and Kelly Ann Lucas were interviewed and provided information to the DOI agents.

One employee Elaine Edey was previously licensed, but her licensed expired in 2008. DOI alleged that Ms. Edey continued to sell insurance despite her expired license status, which is unprofessional conduct and a misdemeanor (technically illegal). This was not an insurance fraud case, just a licensing issue that blew up.

DOI further alleged that during the investigation Mr. Lucas and Kelly Lucas knowingly provided false information and concealing material facts, in attempts to hide Ms. Edey's unlicensed agent activity. 

DOI referred the case to the Los Angeles District Attorney's for prosecution. Lindhl and Kelly Lucas were each charged with knowingly providing false information and concealing material facts, in attempts to hide the unlicensed agent activity. Ms. Edey was charged with transacting without an insurance license. 

In order to resolve the case, a plea agreement was reached. On April 5, 2016, Mr. Lucas, Kelly Ann Lucas, and Elaine Edey pleaded guilty in Los Angeles Superior Court to various misdemeanor charges and were sentenced to serve three years probation and ordered to pay $500 in fines. The charges here are small but they have consequences on the insurance licenses that are more severe than the criminal charges.

Attorney Commentary: Mistakes happen in running businesses. When investigations occur, it is important to not panic and to seek independent advice before undertaking a strategy that can backfire. With the Boards as well as prosecuting criminal agencies, any misrepresentation or falsification can create evidence of scienter (intent) and demonstrate a lack of credibility and honesty. 

Posted by Tracy Green, Esq.

How We Prepare For Your Administrative Hearing & 3 Basic Tips We Give Our Clients to Help Prepare for Hearings

Administrative and Board hearings are similar to trials, but some differences exist in procedure and practice. There is no jury and the administrative law judges (ALJ) must follow statutes, regulations, administrative procedure act (APA), constitutional requirements of due process and consider guidelines from the regulating agency. 

We encourage our clients to understand the administrative rules and procedures that will govern the conduct of the hearing since this is not simply making your "case" to the judge as if it were a jury that decides "guilty" or "not guilty." There are very different standards.

This is one of the reasons that individuals and businesses that represent themselves in pro per have a very difficult time and usually do not do well. Although the paperwork sent out by the agencies indicates that they can represent themselves it is almost universally a bad idea. At a minimum, if a client has financial restrictions and limitations, they should try to work out a payment plan with an attorney or at least pay for a consultation and find out what they need to do to prepare for their case at hearing or settlement.  

What else do you need to know if you are preparing for a State of California administrative hearing? Here are 3 things you need to know. There are many more levels but here are three basic things to know and consider:

First, you must know that if the ALJ reaches a decision that the board or bureau will not approve, that bureau or board does not have to adopt it. It is therefore important as an advocate to suggest a result and create a strong record that the board or bureau at issue will adopt. Otherwise, our client will have to start over again. 

Thus, if you have a recent felony conviction for fraud, the likelihood of going to a hearing and persuading an ALJ to dismiss the Accusation and impose no discipline would be difficult to achieve. But if it were achieved, it would be very unlikely that the board or bureau will adopt it unless the circumstances are so unusual and the record is well-established. Then you have to go through another hearing. In other words, trying a "Hail Mary" pass.

Second, we are creating a "record" with admissible evidence including administrative hearsay. We want a strong record for a couple of reasons: to have the ALJ adopt the findings we want and to have a record that will allow the board or bureau to adopt it. We push our clients to obtain evidence and expert testimony that they sometimes do not think is important but they do not understand that we want something other than their own testimony just in case the ALJ says our client is "not credible." Preparation is key. In most cases, witness testimony, without more, is not sufficient to prove your case. Exhibits, including documents and other forms of evidence such as expert witness reports, are often necessary.

This is where we seek to be creative when there are challenging facts or why we will seek to introduce a great deal of evidence in the record that can support our suggested level of discipline or findings of no discipline. This is also important for creating a record on appeal.  

Third, we help our clients know the ALJ. We gather information from other advocates about the particular practices of the hearing officer or administrative law judge if we have not previously appeared before him or her. We want to know the following:

How active a role does the ALJ or hearing officer play in taking testimony from witnesses? Some will ask questions or clean up weaknesses in the government's case. Some let you try your case.

How does the ALJ handle exhibits and administrative hearsay introduced by declaration? 

Does the ALJ or hearing officer apply any evidentiary rules? 

Is the hearing officer knowledgeable about the substantive law? 

What is the hearing officer’s attitude toward clients, witnesses, and advocates? 

Should you be prepared for anything unusual about the hearing officer’s conduct during hearings?

Make sure you practice good "Hearing Etiquette." Always arrive at the hearing on time or early. Be polite to the hearing officer and all of the parties. Comport yourself in a professional manner. No eye rolling, head shaking or displays of emotion when the judge or hearing officer is speaking or a witness is testifying. You want to show your professionalism and never compromise your credibility or that of your client by lowering your standards of professionalism or courtesy. And when we are acting professionally, understand that it will help you in the long run. Banging on the table or shouting is just for TV lawyers - an ALJ will stop listening. 

We make good records with witnesses, exhibits and persuasive testimony. We let the facts speak for themselves and that also creates good records on appeal.

For your case, you can call or schedule a complimentary 15 minute consultation. Call 213-233-2260 or email tgreen@greenassoc.com.

Posted by Tracy Green, Esq. 

California Department of Alcohol and Drug Program Ceases Operation July 1, 2013

As a part of the FY 2012-13 budget process, the Legislature authorized the transfer of the programs and functions of the Department of Alcohol and Drug Programs (ADP) to departments within the California State Department of Health Care Services, effective July 1, 2013. The transition plan can be found on the ADP website. 

The result of this reorganization will be a state administrative structure that will provide one state department for the substance use disorder system, align with federal and county partners, and promote opportunities for improving health care delivery to the benefit of consumers with substance use disorders. For those programs that are paid for by Medi-Cal, this allows DHCS to license those facilities to whom payments are made for services provided. It is also anticipated that the federal Patient Protection and Affordable Care Act will make more people eligible for insurance covered drug and alcohol treatment treatment. The Counties will also have increased responsibility for oversight. 

This will be a time for change for those facilities licensed by the ADP and we can certainly anticipate changes in licensing and regulation over time. For sober living facilities, non-medical detox facilities and related programs, it will be a time of adjustment. As prescription drug abuse becomes a greater issue nationwide, there will be more need for programs but also more scrutiny especially for the non-medical programs.

It will be important for all facilities to keep informed about program and licensing changes for those programs that are not receiving payment from Medi-Cal. For those who have a medical model where reimbursement is sought, DHCS may be more concerned with reimbursement issues than the public health issues of addiction. At one level, it is useful to have the entire program (reimbursement and licensing) under one agency. However, this will be a larger agency that has many other programs other than drug and alcohol abuse.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260.

Any questions or comments should be directed to Tracy Green an experienced administrative law attorney, health care litigation attorney, and Drug Medi-Cal attorney. She is very familiar with the issues facing facilities licensed by the Department of Alcohol and Drug Program and has represented many facilities over the years in compliance and licensing issues.  The firm website is: http://www.greenassoc.com/

Recent Success Story: Nursing Student With Recent DUI Given Unrestricted RN License After Appealing Denial Of License

Last summer we had a victory in an appeal of a denial of an RN application before the Board of Nursing. This cases are more common now since the Boards are much stricter on rejecting license applications if there is a prior conviction - especially one for driving under the influence.  

A summary of the facts and strategy will show how these cases are handled and can be guided to a successful result or "win."  Although this was a RN application, the process is similar to other types of licensees when they are denied licenses and appeals are filed.

Factual and Procedural Background Surrounding 
Appeal from Denial of a License. 

• In December 2010 while in an RN program, the nursing student was convicted of driving under the influence of alcohol and placed on 3 years probation. There were no other convictions or other alcohol or drug-related problems in his background.
• In September 2011, while still in his RN program, he filed an application to take NCLEX-RN. He did not have counsel and submitted his own letter regarding the DUI conviction. I often find that early representation by counsel helps create a better package and record of mitigation and rehabilitation. 
• In November 2011, the Board of Nursing asked for more information regarding the criminal conviction. The nursing student still did not have counsel and handled the response himself. While he did his best, it was not how we would have recommended proceeding.
• In December 2011, the Board of Nursing denied the application for licensure by examination based on the recent DUI conviction with a high blood alcohol content. At this point, we were hired and filed a timely Notice of Appeal. 
• We immediately began to work with our client and prepared a significant mitigation package that had a lot of different moving parts, letters, reports and documentation. We began negotiations with the Deputy Attorney General assigned to the case on behalf of the Board of Nursing. 
• It took four months to get the mitigation package completed that we wanted and it was submitted to the Board through the Deputy Attorney General. The typical settlement for this type of case is a provisional license that requires the licensee to be on probation once the NCLEX is passed, and those terms are negotiated. 
• Due to the strength of the mitigation package and work we did and had our client do, in May 2012 the Board of Nursing declined to pursue any discipline against the client and he was approved to take NCLEX and the case was transferred to the licensure department. 
• In July 2012, our client was notified that he had passed his NCLEX and became a licensed RN. 

This was a great win since it would have been very difficult for our client to get hired if he had been on probation. It would have cost him a great deal of money over three years in lost income while on probation and would have been a permanent mark on his record that would have hurt his career. We estimated there would have been more than $100,000 in lost income and saved expenses over 10 years. Every case is different and this client was willing to work hard and do all the things needed for us to make him shine before the Board. 

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced nurse attorney, license attorney, and board hearing attorney at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. 

Frequently Asked Questions: What Do I Need To Know About Completing My Professional License?

Ten Important Guidelines On Completing Board Applications And Renewals

When you are applying for a license (or renewing one) from the California Medical Board, State Bar, Department of Real Estate, Department of Pharmacy, Board of Registered Nursing or any other state agency or any employer that is required to report to state agencies or databanks (such as hospitals), all applicants need to remember the following basic guidelines:

1. Start the licensure process early especially if you believe you may have some background issues that require explanations.  It can take months to become licensed and the Board will not hurry the process just because you have a job waiting. The investigation process can take time and staff cutbacks in government agencies often mean lengthier delays.

If you think you may have difficulty getting licensed, start early (while you are in school even) and hire an experienced administrative lawyer to assist you with drafting the explanations and putting together a package for the Board.  Even hiring a lawyer for a two hour consultation will serve you better than relying on the well-meaning but uninformed advice of friends, students or other professionals.

2. When you sign the application, you are certifying that all the information is accurate. In most of the applications and renewal forms you are declaring under the penalty of perjury that all the information is true and correct. This means it is as if you are under oath and promising to tell the truth. In other words, you must be truthful in completing the application. 

3. If you do not complete the forms or questions accurately, your application can be denied on the sole ground that you falsified the application and/or intended to deceive the agency. We have had many clients who came to us after they failed to disclose information in an application and had their license application denied. If there are background issues that will come up in the LiveScan, you are better served in disclosing those matters in the best way possible.

4. Take the questions literally and do not rely on your own interpretation. Err on the side of being cautious. Be overinclusive and not underinclusive. Do not rely on friends or classmates for advice. Go to a professional especially where you believe you may have problems getting licensed due to a prior criminal conviction or prior alcohol or drug abuse problem.  

5. Some of the questions are vague or ambiguous. It is not unusual for board questionnaires to be somewhat ambiguous or to be subject to some level of subjective interpretation. It is always safer to err on the side of caution and full disclosure. If an applicant is unsure as to the interpretation of a question he or she should answer it both ways. We also suggest having an experienced licensing attorney review your application for language and explanations to ensure that it is accurate but setting forth your position in the best light. The time and expense is well worth the chance of being denied a license for intentionally misleading the licensing board.

For example, let us take a question from the Nursing Board's actual application:

Question: "Have you ever had disciplinary proceedings against any license as a RN or any health-care related license or certificate including revocation, suspension, probation, voluntary surrender, or any other proceeding in any state or country? If yes, please provide a detailed written explanation, including the date and state or country where the discipline occurred."

Ambiguity: The first part of the question asks about any "disciplinary proceedings" while the second half asks "where the discipline occurred." The question might seem to assume that it is only interested in cases where actual discipline was imposed.

Do NOT make this assumption. The safer and better course to follow is to set forth any actual accusations or disciplinary charges and if the case was dismissed or no discipline was imposed to state those facts.

6. Criminal Charges. The question that we see applicants harm themselves the most is the one regarding criminal charges. The disposition of criminal cases is often ambiguous and a review of original records is often necessary to know the proper way to answer these questions. We have had many cases where the applicant's failure to disclose the charge accurately resulted in denial of the license or the granting of a restricted license or probation being imposed and we are hired to handle the appeal or disciplinary charge. If the person had answered the question accurately -- the license would have been issued but the perceived deception created significant problems.

Case Example: Physician finished residency and applies for privileges at Los Angeles Hospital. He had disclosed an old driving under the influence conviction to the Medical Board. however, when he applied for privileges at the hospital, he did not disclose the conviction. The hospital ran a background check and denied his application for privileges on the ground that he was deceptive on his application. Under the law, the hospital was required to report the denial of privileges to the Medical Board of California. By the time we met him, the Medical Board filed an Accusation and this young physician had already entered into a Stipulated Settlement and Decision to be on probation for 3 years.

Here is a sample criminal charge question:

"Have you ever been convicted of any offense other than minor traffic violations? If yes, explain fully as described in the applicant instructions. Convictions must be reported even if they have been adjudicated, dismissed or expunged or if a diversion program has been completed under the Penal Code or Article 5 of the Vehicle Code. Traffic violations involving driving under the influence, injury to persons or providing false information must be reported. The definition of conviction includes a plea of nolo contendere (no contest), as well as pleas or verdicts of guilty."

Thus, if someone had been charged and there was a deferred entry of judgment where the case would be dismissed upon the completion of community service and having no further arrests for one year, it will probably be necessary to disclose that charge. Err on the side of caution.

7. Make sure the application is complete to avoid unnecessary delays. Read and re-read the requirements and have someone else review it for errors or omissions.

8. Rehabilitation. If in your youth or past, you had some criminal charges, discipline from employers or agencies, drug/alcohol issues, mental health issues or other life experiences that contributed to the prior conviction/discipline -- your application should reflect your rehabilitation and why you are not the same person that committed those errors and why it is unlikely that these issues will arise again. We often go above and beyond what is required in the application in order to increase the applicant's chances of having his or her application approved.  

We are often hired to assist a person in drafting the best application possible and creating a package that will help someone get licensed where there are past criminal convictions and disciplinary problems. The wonderful thing about the United States is the people can have second or even third acts in their life. The key is acknowledging the past problems and showing why you have earned the right to a license and there is a minimal likelihood that it will ever occur again.

Applicants must also submit a description of the rehabilitative changes in their life, which would enable them to avoid future occurrences. To make a determination in these cases, the Board considers the nature and severity of the offense, additional subsequent acts, recency of acts or crimes, compliance with court sanctions, and evidence of rehabilitation.

The burden of proof lies with the applicant to demonstrate acceptable documented evidence of rehabilitation. We create a package where we show that the applicant has met his or her burden.

Examples of rehabilitation evidence include, but are not be limited to:

• Detailed letter from applicant attached to the application describing the events at issue (prior criminal or disciplinary charges) and rehabilitative efforts or changes in life to prevent future problems.

• Letters of reference on official letterhead from employers, instructors, professionals in the same field, professional counselors, parole or probation officers, or other individuals in positions of authority who are knowledgeable about your rehabilitation efforts.

• Letters from recognized recovery programs and/or counselors attesting to current sobriety and length of time of sobriety, if there is a history of alcohol or drug abuse.

• Proof of community work, schooling, self-improvement efforts.

• Court-issued certificate of rehabilitation or evidence of expungement, proof of compliance with criminal probation or parole, and orders of the court.

• Support letters from others in the community who are knowledgeable about rehabilitation efforts, current skills and why they are supporting your application even though they know about the prior criminal or disciplinary case.

We help outline, draft and coordinate the letters and entire application package and provide an objective view of what the typical agency or bureau wants in the application. Often the applicant fails to realize that although there are many current licensees with problems and issues, in order to be licensed with some adverse history he or she needs to jump a hurdle and prove that he or she is not a disaster waiting to happen and that instead, will be a credit to the profession.

9. Do not attempt to persuade Board representatives of your position. We have had clients who failed to submit a well drafted application package but decided to telephone Board representatives or members or write letters to the Governor to lobby their case. The best step is to prepare the application package as professionally as possible seeking advice of counsel if needed. Any meetings with Board representatives should be with counsel present. Finally, be careful of trying to lobby and persuade Board members, representatives or other political officials of your position unless you are doing it with the advice of an experienced professional. It can backfire and the Board representatives often take notes that do not aid your case.

10. Maintain a copy of the application you submit. We represent clients who failed to keep copies of their submissions. This makes it difficult to know what went wrong with their application.

Conclusion: Your application and/or renewal application is one of the most important documents you can complete. If there are some areas of your past that are troublesome or cause you concern, it is well worth hiring an experienced attorney (even if only for a few hours) to assist you in handling these issues such as ordering the court records and drafting the explanation in an attachment. Remember the value of your license over the course of your lifetime. It is a very valuable asset often worth millions of dollars.

Posted by Tracy Green, Esq. 

Any questions or comments  should be directed to Tracy Green, a very experienced administrative law attorney, licensing attorney, and board and bureau hearing attorney.

Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 15-minute consultation.  Ms. Green's office is located in Los Angeles, California.

Sample Victories in Administrative and Licensing Cases - Many Which Followed Criminal Investigations Or Convictions

Often I get asked the question about what kind of results we obtain in cases. I might jokingly say that lawyers are like gamblers: you only hear about their winnings. However, we have obtained some excellent results even though every case is different. 

Some cases are true damage control cases while others clearly should not rise to the level of discipline. Quite a few are in the middle. I am a believer in working on the mitigation side of the case as early as possible, securing experts and creating good facts for the client. This often takes educating a client about what it takes to get a case closed without discipline especially as Board's have gotten harsher on the discipline these past 5 years. 

The following true cases are examples of our dedication to our clients and the quality of our work:

Medical Board of California

Petty Theft Arrests And Dispositions Results in No Disciplinary Action (2011)

Doctor client had been charges twice with shoplifting. In the first case, the doctor completed a diversion and the misdemeanor charge was dismissed. In the second criminal case, in which we represented her, she was charged with felony theft and we were able to reduce the charge to an infraction after a diversion. After assisting client with disclosures to the Board, the matter was closed without any discipline. 

Four Misdemeanor Convictions Results in Probation With No Suspension Time (2011)

Doctor client had been convicted of DUI in 2011, disturbing the peace in 2010, DUI in 1995 and DUI in 1994. Aggravating factors were an arrest for DUI with no charges filed after refusal to take a blood or breath test and an arrest for public intoxication with no charges filed. We worked on creating a sobriety program with the doctor after the 2011 DUI arrest but before the Accusation was filed. Once the Accusation was filed we worked with the client on the mitigation package. The matter was settled before hearing for probation with no suspension time. 

Criminal Conviction Mandated Reporting Results in No Disciplinary Action (2010)

Doctor client had been charged with Medi-Cal fraud and we represented her in the criminal case. After the preliminary hearing, we filed a motion to dismiss and the charges against her were dismissed but one of her nonmedical corporations plead to a criminal count since there was billing for services not provided and she was an officer of the corporation. After assisting client with mandated disclosures to Board and an interview and submission of mitigating evidence, matter was closed without discipline.

Felony Criminal Conviction For Fraud Results in Probation With No Suspension Time (2010)

Doctor client had been charged with Medi-Cal fraud with over $300,000 in restitution and we represented him in the criminal case. There was devastating evidence as the clinic was run by managers who used the doctor's license to commit fraud (prescriptions for power wheelchairs, hospital beds and unnecessary diagnostic tests). After assisting client with mandated disclosures to Board and an interview, we sought to settle the matter. The Board insisted on revocation of license. After a hearing with excellent mitigation evidence and an expert witness, the hearing officer imposed probation with no suspension time and the Board adopted the decision. 

Workers Compensation Complaint Results in No Disciplinary Action (2010)

Internist doctor client had seen a workers' compensation patient for a limited purpose (high blood pressure). The patient did not have any health insurance and had other health issues for which he was not authorized to be seen by the workers' compensation doctor. The doctor's charting was problematic, the referrals to other providers were not documented and the notes were minimal. We had the doctor sign up for a charting class before the Medical Board interview, submitted mitigating evidence regarding the role of a workers' compensation doctor in treatment, and presented other mitigating evidence.  The matter was closed without discipline. 

Nursing Board of California

Texas Probation Results in No Disciplinary Action On California License (2011)

Nurse maintained her California license after she moved to Texas. Nurse was placed on probation in Texas and successfully completed probation. California opened a complaint here in California for failure to report her Texas discipline and for the underlying case in Texas. We submitted a detailed response and mitigation package requesting that the case be closed without any discipline in California. After assisting client with disclosures to the Board, the matter was closed without any discipline. 

DUI Conviction and Failure to Comply With Diversion Program Resulted in Board Filing Petition to Revoke Probation - Probation Reinstated After Hearing (2011)

Nurse was convicted of DUI and placed on probation with required participation in diversion program and drug/alcohol testing. Nurse missed numerous testings. Board filed petition to revoke probation. We reached a settlement reinstating probation with an additional year of probation after submitting an extensive mitigation package. The Board of Nursing refused to adopt the settlement and demanded we go to hearing. The Board sought revocation of the license. After a hearing, the hearing officer issued a decision reinstating the license with an additional year of probation.   

Physician Assistant Board of California

Medical Marijuana Compliant Results in No Disciplinary Action On California License (2011)

Physician Assistant was performing physical examinations on patients for medical marijuana recommendations. Physician Assistant Board's position was that only a medical doctor can perform such examinations and that the examinations cannot be delegated. After assisting client with submissions to the Board and an interview, the matter was closed without any discipline. 

Inserting Non-FDA Approved IUDs Results in No Disciplinary Action On California License (2009)

Physician Assistant was inserting IUDs on low income patients in the Medi-Cal program which turned out to be non-FDA approved and made in Canada. After assisting the client with an audit by Medi-Cal, making disclosures to patients, we helped him respond to the Board complaint. After assisting client with submissions to the Board and an interview, the matter was closed without any discipline. 

Physical Therapy Board of California

Misdemeanor Conviction for Carrying Firearm in Public Place  Results in Public Reproval (2011)

Physician Assistant was convicted of misdemeanor of carrying a firearm in a public place and had the added fact of being in the possession of marijuana legally with his medical marijuana recommendation due to a disability.  After presenting the legal arguments, mitigation package and a settlement conference, the matter was resolved with a public letter of reproval.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 15-minute consultation. 

Any questions or comments  should be directed to Tracy Green, a very experienced administrative law attorney, licensing attorney, and board and bureau investigations and hearing attorney at tgreen@greenassoc.com. 

What NOT To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office - Part 2

This is the second in a series. The first article is entitled "What To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office: What To Do And What NOT To Do - Part 1." Read Part 1 and then read this article for greater detail on what NOT to do when there is a government or board investigator asking to interview you, requesting records or when you find out that there is a pending investigation. I'm giving you my experience but remember that this is not a substitute for seeking your own legal advice but can help you understand the process. 


Rule #1: Do NOT take a board investigation lightly but at the same time do NOT panic. You have worked hard to get your license and most probably, your livelihood depends on your practice. Regardless of what you think the merit of the complaint, take it seriously and remember their job is to protect the public, and they can put you on probation, impose discipline on your license, fine you, etc. The board has a very complex and detailed protocol to follow in order to fulfill their mandate to protect the public. Have your attorney respond respectfully and professionally.

However, at the same time, everybody who has been in a profession long enough is going to be investigated. Talk to some people who have been through this before to get a healthy perspective. In other words, take it seriously but do not panic so that you make stupid mistakes. I have had too many cases where the client handled the board investigator interactions on their own for months and once they made numerous missteps, I was brought in to fix their mistakes.

Rule #2: Do NOT respond to a letter from the board unless you have consulted with an attorney. Even better, have the attorney respond to the board rather than you.

For example, I represented a Board certified Internist who was treating a patient covered by workers’ compensation insurance for high blood pressure only. The patient had numerous other health issues that were not addressed in the records. The doctor got her advice from other physicians and responded without realizing that her files were poorly documented, failed to show referrals to other specialists and failed to address the gaping problems with treating a patient in the workers’ compensation system who is not covered by any other insurance. I was brought in when the board decided to bring her in for an interview with a medical expert and a Deputy Attorney General. The board investigator was getting ready to recommend filing an Accusation. We became prepared for the meeting by having the doctor sign up for a medical record keeping class, sending a detailed letter addressing the issues in the workers’ compensation system where there was only authority to treat for one condition and how the doctor had changed her policies and procedures to handle documentation of referrals better in the future. Armed with these documents, the interview went well and once the doctor completed the PACE record keeping class, the case was closed. 


Everything you say is “evidence” or an “admission” and can be used against you in a Board proceeding or hearing. Having your attorney proffer this information is a way of getting around this. In some cases, the Board will specifically request that the letter come from you.  Supplemental information, however, can be submitted by the attorney.


One of my sayings is that the person with the biggest stack of papers wins. I like to show the Board that my client is professional and even if things were not handled perfectly, we have done everything to ensure that such an error will not happen in the future and therefore no discipline is needed. The Board gets my client’s CV, recent related continuing education certificates, letters of support, declarations under oath, expert witness report (if needed), etc. Every case is different and we are only limited by our imagination and creativity in finding ways to prove our case. 

Rule #3: Do NOT turn any material or records over to the board without getting legal advice first. While the board is likely to have a right to review the case material related to an investigation, the rules of evidence are quite complex and, at times, confusing. It is best if you let you attorney advise you about what to turn over to the board according to your state law. Indiscriminately turning records over to the board can result in additional or more serious charges than were originally intended by the board. In addition, you want to ensure that all privacy rights of any patients or clients are protected.

There are cases where auditors or certain inspectors (such as OSHA) are entitled to show up unannounced and request records. In those cases, contact an attorney so you make sure your rights are protected. There are ways to provide records without being interviewed until you have time to determine the status of the investigation and the nature of the complaint.  In addition, you want to ensure that you have a complete record of what has been produced.

Rule #4: Do NOT ever meet with the board investigator without legal representation. Meeting with an investigator without your attorney can be the single most professionally dangerous error you can make. It can cost you a clean license. Do not meet with a board investigator in person or talk to him/her on the phone without an attorney present, even if you are confident that you can positively respond to the complaint or accusation, and you think you can explain it away. The reason to have an attorney is that he/she can protect your rights to respond to certain questions so you do not unknowingly incriminate yourself. 


Most professionals do not know their rights or worry about looking "guilty" if they ask for an attorney and the truth of the matter is that they need an attorney to advise them.

In addition, if I as your lawyer tell the investigator what an amazing professional you are and give examples of what a good person you are, it is advocacy. If you say it, however, it is arrogance. Investigators generally cannot stand arrogance.

Rule #5: Do NOT ever discuss anything, without legal representation, with the board investigator if they unexpectedly show up at your office. It is common here in California for the investigator to show up without an advance appointment. Even if the investigator seems friendly, neither talk to them about the case nor release any records without legal representation. The nicer they are, they more you need to be wary since that is an investigative technique commonly used. The best investigators are like used car salesmen, they will come in your office, act chatty, put the feet up on your desk and hope you will say everything before you have had a chance to think about the case, review the records or speak to an attorney.


If an investigator unexpectedly shows up at your office or home, politely ask for their business card and tell them that your business attorney will contact them soon. Chatting "informally" with an investigator without your attorney present or turning records over to them can be the two most professionally dangerous errors you can make. Remember that you do not have a witness and you are not as well prepared as they are since they have been investigating the case. Do not allow them to pressure you to do anything right then and there. You have the right for legal representation and you should exercise it in a respectful way.

Rule #6: Do NOT assume that lack of harm to client or patient will end the board inquiry. You must understand that boards often focus on whether you violated any state laws or administrative or professional binding guidelines rather than whether your client was harmed by you or whether there was malpractice. While the element of damages is an essential element in a malpractice lawsuit, it is not a determining factor in a disciplinary action, except in relation to any penalty that may be assessed.

Rule #7: Do NOT be in a hurry. Often I have clients that want to get the investigation over so quickly that they insist on meeting the investigator and making assumptions about it too quickly.  I have had clients try to insist that I send letters before I have received a response from the State about any complaints – and later when we receive a letter about the nature of the complaint (in California under Bus. and Prof. Code Section 800(c)) they are glad I made them wait.  In most cases, time is your friend and use the time to help build your case and show the Board the facts. You want to meet deadlines but do not rush and make simple mistakes.


For example, when I say “don’t be in a hurry,” I also mean don’t be in a hurry in making decisions without legal counsel. One of my clients was visited by the DEA and was asked to surrender his DEA license. He was afraid and thought it would help an investigation go away, so he surrendered it and that caused a Medical Board investigation to be opened.

Rule #8: If you speak to investigators, do NOT lie or shade the truth. If you cannot tell the truth, do not speak. It is often a crime to lie to a federal or state agent.

For example, I had a client who ran a billing company charged with a federal felony of obstructing a federal audit which related to the audit of his client. Naturally, he did not consult an attorney before meeting with investigators from the Office of Inspector General (OIG) several times. 

Rule #9: If you are told that you have the “right to remain silent,” do not speak to investigators. This means that there is a criminal investigation. This is the time to exercise your constitutional right to the 5^th Amendment until you meet with an attorney.


Example, I had a client who was being investigated for dispensing IUDs that were from Canada and were not FDA approved. The doctor and his office manager confessed on the spot in the meeting. Did this help them? No. Criminal charges were filed. My other clients in similar cases who did not speak were never charged criminally for the same conduct since the authorities did not have a confession.

Rule #10: If you are asked to give a written statement, do NOT do so. The investigators will often write it out for you to “help” you or one of your employees. Take the time to meet with an attorney before you sign any document even if they tell you that you are not the suspect. It is amazing how many cases get started this way.


Your professional future, the value of a clean license and your rights are of critical importance to our firm.  We know what is at stake when licensees face a California governing body without the aid of an experienced attorney. How you initially respond to a state licensing board investigation or request for records may determine if you get sanctioned, lose your license, or lose your livelihood.


Posted by Tracy Green, Esq. 

Any questions or comments  should be directed to Tracy Green, a very experienced administrative law attorney, licensing attorney, and board and bureau investigations and hearing attorney.

If you have questions regarding your own case, please call 213-233-2260 or email Ms. Green at tgreen@greenassoc.com to schedule a complimentary 15-minute consultation.

Do I Need To Disclose Convictions That Have Been Expunged In Professional License Or Government Applications?

Here is a series of posts on frequently asked questions regarding misdemeanor and state felony convictions, expungements of those convictions and how expungements can affect licensed professionals during California Board or Bureau proceedings.

Question 1: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past but it was expunged.  Do I need to disclose it?

Answer to Question 1:  The short answer is "YES." The failure to disclose expunged convictions gets more applicants into trouble with Boards and Bureaus (and results in probably as many denials of licenses) than the disclosing of the conviction does since it allows the Board or Bureau to deny your application on the ground that you "made a false statement" on your application.  The hallmark of professionalism is honesty so if they see you any false statement, it is a huge problem and claiming you did not understand that you had to disclose the expunged conviction is not persuasive after the fact.

In fact, it is not only "expunged" convictions you will probably have to disclose but also other kinds of arrests that resulted in diversion or deferred entry of judgment.  It is necessary to read the application carefully and the definition of "conviction."

And long answer is that "Yes, you disclose but you want to disclose it in the best manner possible." A well written statement of explanation and mitigation package submitted to the Board or Bureau can make a huge difference in how your application is treated.

Remember, an expungement does not:

• Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal. Thus, when the agency does a background check it will come up.
  
• Allow you to omit the conviction from applications for government-issued licenses.
• Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc. 
• Seal the court case file from public inspection. The court file remains public record.

I am often hired to help physicians, lawyers, nurses and other professionals submit written explanations and packages of prior convictions. It is often necessary where my clients speak English as a second language and also do not understand culturally how to present this type of information in the best light possible. You need to take full responsibility for your actions, be accurate and honest and at the same time explain how something like this will not ever happen again.

It is better if I am involved from the beginning but often I get hired after the application has been denied and we need to file an appeal. The old saw that "good beginnings make good endings" applies here and even educated clients need an objective person to know how to write for the Board or Bureau.

There is usually some aspect of shame, embarrassment or emotion involved (especially when the conviction is old or was unfair) that can cause the applicant to not take it as seriously as it should. Or it is assumed that because the conviction is over 10 years' old, it will not be used to deny a license or application.

The California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation package and explanation can often save clients hundreds of thousands of dollars over a few years.  It is in investment that is often well spent. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. 

Any questions or comments  should be directed to Tracy Green, an experienced California board attorney, administrative attorney, and California licensing attorney with more than 20 years' experience. 

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed professionals in California and throughout the country. Their website is: http://www.greenassoc.com/

Los Angeles Attorney Pleads No Contest To Attempting To Dissuade A Witness To Testify -- Where Is The Line In Using Civil Lawsuits In Criminal Cases?

Where is the line in obtaining a civil settlement to have a criminal case dismissed? It is not uncommon for attorneys, including myself, to use the fact of a civil lawsuit or a settlement in that lawsuit to help persuade a prosecutor that the case is more "civil" than criminal and that there is good cause for dismissing the criminal case.

When these matters are handled, however, there is a line.  In one case here in Los Angeles County an attorney lost his State Bar license and obtained a criminal conviction in going too far in seeking to have a witness not testify in a criminal case in the hope of getting the criminal case dismissed.

On January 6, 2010, a Los Angeles attorney Sean Erenstoft (age 42) was indicted on three felony counts including bribing a witness and attempting to dissuade a witness.  The case was handled by the Justice System Integrity Division of the Los Angeles County District Attorney's Office.

The indictment alleged that Mr. Erenstoft was representing a client in a criminal stalking case.  As part of his tactics, it was further alleged that Mr. Erenstoft filed a civil case against the victim to dissuade her from testifying against Mr. Erenstoft's client (the defendant in the stalking case) at his preliminary hearing.  It was also alleged that Mr Erenstoft approached the victim and offered to drop the civil case in exchange for favorable testimony at his client's sentencing.

On June 14, 2010, Mr. Erenstoft pleaded no contest to one felony count of attempting to dissuade a witness. Sentencing is scheduled on September 15 before Los Angeles Superior Court Judge David Wesley. As part of the plea agreement, the State Bar of California will immediately disbar Mr. Erenstoft.

Mr. Erenstoft is expected to be sentenced to three years of formal probation and will be ordered to do 100 hours of community service. There will be no jail time. Mr. Erenstoft additionally will be expected to pay $9,074.30 in restitution to the victim.

With respect to his State Bar license, Mr. Erenstoft will be disbarred but can apply for reinstatement in five years. This is an unfortunate result and is an example of what "hardball" tactics can lead to in a case. I have had clients and victims reach civil settlements but it is important to never make part of any agreement a request that a victim not testify or not comply with any court order or subpoena. There can be confidentiality agreements but those clauses do not usually preclude testifying pursuant to a court order or subpoena.

Clients can get afraid and worried about leaving their fate to the jury system.  I recall when the Anthony Pellicano case was in the news and it was alleged that there was taping of conversations between opposing counsel and their clients -- I had more than one client who wished they could hire someone to tap phones and obtain an advantage in the lawsuit or case. At that point, I have to remind the clients not to make matters worse and that apart from being illegal, it is not worth the risk. I will tell the client that this is not a matter of not being "aggressive enough" but about being smart. Evidence of asking witnesses not to testify can be used to show guilt, among other things.

Posted by Tracy Green, Esq.  Any additional questions or comments should be directed to tgreen@greenassoc.com.  Tracy Green is a principal at Green and Associates. The firm focuses its practice on the representation of licensed professionals, including attorneys and health care professionals.

Tracy Green is a  dedicated Los Angeles professional license defense attorneys and is committed to excellence.  You can email her at tgreen@greenassoc.com or call her at 213-233-2261.  Their website is: http://www.greenassoc.com/

Notice: California Board Of Registered Nursing Rules Change On Issuance Of Temporary Licenses Or Interim Permits

Effective Monday, August 10, 2009, the Board of Registered Nursing (BRN) will not issue a Temporary License or Interim Permit until the processing of fingerprints is completed by the Department of Justice and the Federal Bureau of Investigation and have notified the BRN of the results. This will result in no Temporary Licenses or Interim Permits being issued at the counter, unless the processing of fingerprints have been completed.

This is a change from prior BRN policy. This change probably relates to the prior issues where nurses with prior criminal history had not been screened at the time of license application. Thus, all applicants should get their fingerprints and screening done as soon as possible in order to process their application timely.

Any questions or comments should be directed to: tgreen@greenassoc.com or 213-233-2260. Their website is: http://www.greenassoc.com/

Los Angeles Times Publishes Series Of Articles On California Board Of Registered Nursing And Discipline Of Nurses

The July 12, 2009 edition of the Los Angeles Times has an article regarding the oversight of nurses and the California Board of Registered Nursing. This article is entitled "Problem Nurses Stay On As Patients Suffer" and is one of a series of reports and can be found at:

http://www.latimes.com/news/local/la-me-nurse12-2009jul12,0,2185588.story

A related story entitled "Lives Ruined And Worse" ran in the same L.A. Times edition:

http://www.latimes.com/news/local/la-me-nursecases12-2009jul12,0,2930799.story

Nursing Board Attorney Commentary:

he article is sure to engender an outcry for the Board to be tougher on nurses and to speed up the discipline process. The article, however, focuses on certain cases, the length of time it takes for the Board to investigate a case and give the licensed nurse his or her legal right to a hearing. the article further neglects to consider how many licensed nurses are in California and that the Board can often be heavy handed when it comes to discipline.

The L.A. Times does not address why the hospitals, supervising physicians, health care agencies and other employers of nurses are not taking responsibility for the nurses. When nurses are not properly trained or there is insufficient staffing, errors can occur.

Instead of an even handed analysis of the issue, the articles create a dire view of the situation when, in fact, a few bad cases are not the rule. Discipline and investigations should ensue but it should not be an overreaction to simply take away a person's license without adequately investigating the case and providing full due process.

Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates, Attorneys at Law, Los Angeles, California. They focus their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers including registered nurses and licensed vocational nurses.