Issue: Navigating a license investigation
The best conceivable outcome from an investigation of your professional license is your case is closed with zero findings of alleged misconduct and no discipline. Administrative investigations for most of California’s professional licensing boards are conducted by investigators from the Department of Consumer Affairs. These investigators are State of California employees. Many investigators have peace officer powers.
Licensing board investigations are primarily a complaint-driven process. Typically, your licensing board first receives a complaint from your current or former employer, a patient or client, a family member, a current or former spouse or partner, or a citizen in the community. Even if you know the allegations in the complaint are false, your licensing board cannot ignore the complaint and has a duty to investigate. Appreciating this duty to investigate and the board’s obligation to protect the public, even in the face of a bogus complaint, can help you gain a better perspective on the nature of the agency’s investigative process.
Some professional licensing investigations, while primarily focused on adherence with professional standards, can potentially also have criminal justice implications. For example, so-called “drug diversion” investigations of physicians, osteopaths, physician assistants, registered nurses, and other healthcare practitioners, will encompass potential violations of California laws and regulations governing professional practice, but can also implicate state and federal criminal law statutes.
This dual nature of some professional license investigations as both administrative and potentially criminal, especially when conducted by a government investigator bestowed with peace officer powers, presents a challenging dilemma for the licensed professional. This challenge arises because, unlike a purely criminal investigation by, for example, the local police or district attorney, where one can assert her or his Fifth Amendment right against self-incrimination and remain silent, when a licentiate asserts this constitutional right during the administrative law investigation, she or he can be accused of refusing to cooperate with the investigation.
For many California licensing boards, cooperation with the agency’s license investigation is a professional responsibility, and refusal to cooperate is deemed either unprofessional conduct or an aggravating factor when later determining an appropriate penalty if misconduct is found.
Successfully navigating the licensing board’s investigation is vitally important to achieving the best end result in your license case. The best time to consult with a California professional license defense attorney is the first moment you become aware there is a complaint or pending agency investigation of your professional license.
The most common misstep by practitioners is to wait until after the agency’s license investigation is concluded, findings are issued, and allegations are leveled. By that time, there were many missed opportunities to proactively affect the investigation’s outcome, steering it to either a finding of no unprofessional conduct or limiting the number of adverse findings.
Licensing board investigators are trained, professional interrogators who use a range of investigative techniques to extract damaging information from the subject of their investigation. One investigative technique is friendliness, affability, and fostering an impression the investigator is “on your side,” sincerely wants to help you “get through this,” is understanding, and can empathize with your situation. This technique often causes the investigative subject to let down their guard and underappreciate the seriousness of the danger, mistakenly believing the investigation is just a technicality and everything is going to be okay in the end or will result with a “slap on the hand.”
Another investigative technique used by agency investigators looking into professional license complaints is declaring herself or himself to be merely a neutral factfinder who “doesn’t have a dog in this fight” and “just gathers facts” and “makes no recommendations.” Optimally, this should be how a good and ethical investigator approaches each investigation. Still, of necessity, even the most scrupulous investigators must express opinions and recommendations on some aspects of their investigation. For example, where two or more witnesses make conflicting statements about the same events, the investigator must make a credibility determination, expressing his or her opinion about who is telling the truth. And, naturally, all investigators are human with personal biases and fallibilities that can sometimes be expressed in their investigative findings.
Assertiveness or “command presence” is another technique learned by licensing board investigators during their professional training. By being forceful and firm, without explicitly informing you of all your legal rights, the investigator may instill fear of bad consequences if you do not immediately comply with requests that are optional or voluntary, such as signing release authorizations, writing and signing incriminating statements under penalty of perjury, or submitting to drug testing. It may ultimately make strategic sense to comply with some or all of these requests depending upon the circumstances, but only after careful consideration and consultation with a California administrative law attorney specializing in professional license defense.
The takeaway is, treat every administrative agency or board investigation of your professional license very seriously, even if it initially seems to be minor. While the best conceivable outcome from such an investigation is nothing happens, the worst conceivable outcomes can be revocation or suspension of your license, interruption of your professional practice, and in some cases referral to law enforcement for possible criminal prosecution. As soon as you learn you are under investigation, find a reputable, experienced, and capable lawyer for professional guidance.
License Defense Attorney in California on Your Side
Are you under investigation by your professional licensing board, or afraid you will be soon? Our law firm’s experienced legal team of California license defense attorneys, paralegals, lawyers, and professionals can help you protect your professional license.
We represent clients everywhere in California and can often start work on your case within 24 hours after you contact us. Call 1-800-456-3767, or use the contact form here on our website to send us a message.