If you have received a complaint against you from your licensing board or agency, you may be wondering what happens next and how an attorney or law firm can help you in this process. Most professional licensing boards and agencies share certain common procedural stages:
After the agency or board receives and processes the complaint, you will be required to respond in some way. Generally, the response is in writing, although some boards gather information through interviews with you and others by an investigator. (We regularly assist clients with written responses and are flexible in working with clients in doing so, ranging from preparing and signing responses ourselves on clients’ behalf, to reviewing responses prepared by clients and having them submit the response in their own name; we also routinely attend initial interviews with clients).
After reviewing your written response and possibly conducting some more investigation, many agencies schedule an informal meeting to discuss matters on which they may potentially take action against you. This meeting often occurs with members of the agency’s staff and at least one member of the licensing board or agency. You are free to bring counsel to these informal meetings. (If the complaint moves beyond a written response, this is often the most effective procedural stage for counsel experienced in disciplinary matters, like our office, to assist you).
A determination is made by the licensing board or agency about whether there is probable cause to believe that a violation of the applicable standards, regulations or statutes has occurred. This may result in proposed disciplinary action or a referral for a formal hearing. With almost all boards and agencies, neither you nor your counsel is permitted to be present at this stage.
This involves a formal hearing before the licensing board or agency, or before an administrative law judge at the Office of Administrative Hearings. Generally, the formal hearing has all the same aspects and components of a civil trial, but without a jury. Absent a resolution by consent order, the licensing board or agency issues a decision or an ALJ issues a recommendation to the licensing entity. (If they haven’t done so already, most professionals decide that they need to retain an attorney at the formal stage, with which our firm has considerable experience).
Generally, appeals are provided but the basis for appealing is limited. The appeal is based upon the record developed at the administrative level; it is not a new trial before the courts. Ordinarily, the courts will only reverse or modify an agency decision if it finds that a licensed professional’s substantial rights may have been prejudiced for several identified reasons. (We believe that an attorney’s ability to positively affect a client’s matter at this stage is much more limited than if representation begins at the administrative level).
Each agency has its own unique variations on these procedures and certain boards and agencies are not required to follow the general procedures outlined above. We are happy to explain these differences and variations through an individual consultation.
Because we primarily represent individual professionals, we offer different types of fee arrangements and do our best to keep the fees and expenses reasonable and affordable. Also, some malpractice or liability insurance policies have coverage for the costs of hiring an attorney to represent you in disciplinary proceedings before your licensing board or agency and often allow you to choose your own counsel. You should review your policy, contact your insurance agent, or provide the policy to us in advance of the initial consultation with our office to determine if you have such coverage.
When faced with a disciplinary complaint, interview or informal conference with their respective licensing board or agency, many professionals wonder whether they should hire an attorney to represent them at this stage. Many decide that they will try to handle the informal stages and only hire an attorney if the matter progresses to the formal hearing stage. Others may simply consult with an attorney that they use for other legal matters but who is not familiar with their licensing board or agency.
Is this strategy a mistake? There is no single answer. However, our firm consistently finds that our best opportunity to achieve a positive result is at the informal stages of any licensing or disciplinary proceeding. Once a matter reaches the formal stage, at least the staff and generally some members of the Board or agency have decided that there is probable cause to believe that a professional has committed a significant violation. It is very difficult to get these individuals to reconsider their positions. At this point, usually the only options are to take the matter to a formal hearing or enter into a public consent order.
Here are the top five ways our firm can help you in informal disciplinary investigations and proceedings:
Representation or assistance at the informal stages is generally considerably less expensive than in formal stages. We represent clients at the informal stages before most of the major licensing boards and agencies, including those listed in our Practice Areas.
We have good working relationships with counsel for most of the boards and frequently can work out an acceptable resolution without the need for a formal hearing. We have resolved formal charges with numerous licensing entities, including the Medical Board, State Bar, Board of Pharmacy, Real Estate Commission, Appraisal Board, Board of Examiners for Engineers and Surveyors, Board of Certified Public Accountant Examiners, and several counseling boards, such as the Social Work Certification and Licensure Board, the Substance Abuse Professional Practice Board, and the Board of Licensed Professional Counselors.
If an acceptable resolution cannot be reached, we have many years of experience trying formal disciplinary proceedings before the various boards and agencies, such as the State Bar, Judicial Standards Commission, Board of Law Examiners, Department of Insurance, and Board of Contractors, Office of Commissioner of Banks, among others.
Several boards and agencies have privately retained us to handle and prosecute highly- publicized formal disciplinary cases. These include the State Bar proceeding against former Durham District Attorney Michael Nifong, arising out of the Duke Lacrosse cases, which hearing led to his disbarment, and the Dental Board’s prosecution of a dentist from the Lake Norman area, whose license was revoked for committing bizarre sexual assaults on numerous female patients.