HOLDING ON TO YOUR TICKET

Effect of Criminal Case on Your Professional License
by Robin D. Perry, Esq.

Regulated Professions

The list of regulated professions is extensive.  Medical professionals including chiropractors, physicians, osteopath, podiatrist, physicians assistants, psychologists, dentists, dental assistants, dental hygienist, pharmacists, optometrists, registered nurses, vocational nurses, psychiatric technicians, respiratory care practitioners, acupuncturists, occupational therapists, speech-language pathologists, physical therapist, veterinarians are all subject to licensing laws.  Similarly, most counselors such as marriage and family therapists, licensed clinical social workers, licensed educational psychologists are regulated.  Financial, legal, real estate and property professional like accountants, architects, real estate brokers, engineers, geologists, geophysicists, land surveyors, attorneys and court reporters are subject to discipline.  Finally, barbers and cosmetologists, electronic and appliance repair dealers and contractors, funeral directors, embalmers, and even horse jockeys can find themselves in the cross-hairs should they run a foul of the criminal laws.

Licensing Agencies Frequently Discipline Based Upon Criminal Issues

Discipline cases based upon criminal convictions are common. Indeed, licensing agencies frequently seek to revoke or suspend a professional license when a licensee has been convicted of a crime.  As a result, a large body of statutory and case law developed concerning the use of criminal convictions as a basis for license discipline.  This article discusses common legal issues that arise when a criminal issue is the basis for license discipline.

California is permitted to regulate the practice of professions under its general police powers. California Courts construe license discipline laws broadly to effectuate public protection.  As a rule, licensing cases are intended to prevent future harm.  Actual harm to an existing patient is generally not required to be shown as part of a licensing action.

Licensing Boards investigates licensees and takes disciplinary action when appropriate.  Discipline could include a citation, a fine and abatement, correction of the violation, suspension, license revocation and even injunctive relief.

Effect of Criminal Convictions

It has long been held that a criminal conviction can be grounds for discipline of a chiropractor.  Even conduct that occurs outside of a licensee’s practice is often fair game.  For example, a court upheld discipline of a doctor on the basis of drunk driving convictions despite a lack of evidence that the doctor’s actions ever affected his medical practice or patients.  In that case, the court found the DUIs reflected on the licensee’s fitness and qualifications to practice medicine.

Typically, the license agency uses a criminal conviction as a basis for discipline.  For a criminal conviction to form the basis for licensing discipline, it must be substantially related to the licensee’s fitness to practice the profession for which the license was issued.

A conviction is defined as

*    A plea or verdict of guilty; or
*    A conviction following a plea of nolo contendere, commonly known as “no-contest.”

However, even an acquittal in a criminal case may subject a licensee to discipline.  While it is true that criminal proceedings that result in an acquittal cannot be the basis of license discipline, a licensing agency can bring discipline proceedings based on the conduct underlying the criminal case.  A higher standard of proof exists in a criminal case than in a disciplinary case.  For example, assume a chiropractor is acquitted of sexual battery with a patient in a criminal trial.  Because the criminal standard of proof, proof beyond a reasonable doubt, is much higher than the standard of proof in a disciplinary hearing, a licensing agency can still bring discipline proceedings under a theory that the evidence would justify discipline under the lower standard that exists in disciplinary proceedings.

Similarly, while an arrest by itself is not appropriate for discipline, the conduct underlying the arrest may be the basis for license discipline.

Effect of Expungement of Criminal Conviction

Under certain circumstances, a criminal defendant may have his or her guilty plea set aside and dismissed.  Such an occurrence is called an expungement.  While an expungement is desirable, it does not prevent a licensing agency from bringing a disciplinary action based upon the conviction, in the absence of a specific statutory provision.  However, an expungement may be relevant to a license discipline case as evidence that the licensee has been rehabilitated or to otherwise mitigate the charge.

Effect of Drug Diversion

Many licensing disciplinary actions stem from substance abuse.  Often, those criminal cases resolve as part of a drug diversion program or under the provisions of Proposition 36.  Nevertheless, a licensing agency may bring disciplinary action even if the licensee successfully completes a drug diversion program as part of a criminal case resolution.  Although the conviction itself cannot form the basis for discipline, the wrongful conduct underlying the conviction may be a basis for discipline.  Many licensing boards have their own drug diversion program.  In substance abuse cases, it is often possible to resolve the criminal case and disciplinary case when the licensee completes the licensing agencies substance abuse program.

What to do if you have Criminal Issues

Criminal cases are stressful for everyone.  For licensed professional, a criminal case, even a minor one, may not only affect your liberty, but your livelihood.  It is important to obtain skilled counsel at the outset.  The goal is to prevent a criminal case from ever being filed.  If a case is filed, the preference is often to seek an acquittal, dismissal, deferred entry of judgment or expungement.  Any of those results may eliminate, reduce or mitigate a subsequent disciplinary proceeding.

When a licensee is confronted with a disciplinary proceeding, it is critical to show that he or she is sufficiently rehabilitated from his or her crime to continue practicing.  Evidence of rehabilitation may include character letters, volunteer work and community service, counseling and therapy, religious and community based activity, evidence of attendance in drug rehabilitation, testimony from a psychotherapist that the criminal conduct is unlikely to recur and evidence that the licensee has changed business practices to avoid a recurrence of the problem.

Your attorney should also be prepared to show mitigating evidence.  Such evidence may include the length of time licensed, absence of prior discipline and convictions, employment record, the licensee’s good reputation, difficult circumstances that may have led to criminal conduct, length of time the licensee has spent free of judicial oversight, honesty in admitting errors, etc.

For most licensed professionals, criminal issues are typically isolated instances that mar an otherwise good reputation.  With capable legal counsel and representation, it need not cost you your ticket to practice your chosen profession.

Robin D. Perry, Esq. is the founding member of the Law Offices of Robin D. Perry & Associates.  He handles Professional Licensing & Disciplinary matters and White Collar Criminal Defense throughout the State of California.  His clients include medical professionals, lawyers and licensed real estate personnel.  Perry is a former Government prosecutor.  He has over seventeen years experience handling administrative and criminal matters.   For further information, or for a consultation, please call (562) 216-2944 or e-mail him at Robin@lordp.net.

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