When your professional license is on the line, much can hinge on the day of your administrative hearing. The hearing itself can be a very intimidating prospect. You'll be facing a person or group who knows a lot about your profession and is charged with maintaining the integrity of that profession.
Unlike in a criminal case, in an administrative hearing, the trier of fact is not a jury of peers—it's usually a member of the agency that is making the decisions. The trier of fact could actually be an entire board of the agency, a commission, or members of the professional community.
Even though an administrative hearing is not in a judicial court before an actual judge it can still have a devastating impact. Professional advice, with a concrete plan, can make or break your case.
Joseph D. Lento has served as an attorney to countless professionals facing the prospect of license loss. He is a tireless advocate who will fight for your cause. He has a deep understanding of how boards think and operate in these cases.
The people who can rule on your entire career are those who have been selected because they have a significant level of knowledge in your profession or those that have authority over you in your profession. This sets the bar very high.
The notion is that you are among your own, but the reality is that it's adversarial. The triers of fact in administrative hearings often have expertise that leads them to be able to make a final determination based on that expertise.
When you are confronted with an administrative hearing, you will be facing people that have strong experience in the subject matter in dispute. They will be able to examine the matter with much more knowledge than the average layperson.
Handling this without adequate representation could cost you your livelihood.
Precedent Doesn't Matter
The criminal justice system employs a doctrine known as stare decisis, which means the court must adhere to similar cases that have been decided and not disturb matters already settled in a court of law. Because of this, judges in criminal cases will look to precedent.
But decision-makers in administrative hearings do not have any pressure to follow precedent—nor do they always publish decisions. The bottom line: Past administrative decisions can, but do not always, control later administrative hearings, making the outcome very unpredictable.
They May Know You Already
The board you appear before may be comprised of people who already know a lot about you. They are extremely involved in your profession, and if there is history between you and the board, they know much more about you than any judge would. Calling them out for conflicts of interest will have little effect.
It's important to have capable counsel to defend you, even given prior issues with your license. Trying do this on your own, particularly if you've had issues with your board before, is very risky.
Evidence is Different
While in criminal trials, the burden of proof is beyond a reasonable doubt, in administrative hearings, it is based on a preponderance of evidence, which means if the board or other adjudicators decide there is a more than 50 percent chance the allegations against you are true, your license could be in serious jeopardy.
On the positive side, the party who files the complaint of appeals a prior administrative decision has the burden of proof during the proceeding. But both parties must provide facts, evidence, and arguments in support of their favored resolution, with copies for both sides.
This can be a detailed and time-consuming process, and having an attorney who assists with determining what is important and the best way to document it can be an advantage in a high-stakes case.
Why Can't You Just Represent Yourself?
Many professionals assume a complaint against them is little more than a misunderstanding, and if they just have a chance to explain to the board what happened, the issue can quickly be cleared up. Because it's called a hearing (rather than a trial), you may be tempted to appear before the board on your own behalf—after all, who knows the facts of the matter better than you?
Doing it yourself, though, can backfire in a serious way. Here's why:
- The licensing board is not on your side. The board is not there to protect you. It is there to protect clients and potential clients against the bad apples within your profession. It is there to make sure you follow their rules, to discipline you if you don't, and to prohibit you from continuing your practice if they decide what you have done makes that necessary. So, anything you say or do can be used against you—even if you express it in an informal fashion. An experienced attorney can help you avoid pitfalls with the potential to worsen your penalties or even cost you your license.
- This is a legal matter, not a professional one. The licensing board is an agent of the state, and if there is a hearing regarding your complaint, it will take place in a legal setting. You may be brilliant in your chosen field, but it's unlikely you are sufficiently skilled in matters of the law to effectively represent yourself. (Given the emotional nature of such hearings, even talented attorneys hire other lawyers to represent them.)
- Again, there is a difference between a hearing and a criminal matter. Unlike a criminal case, a regulatory board doesn't necessarily have to be convinced beyond a reasonable doubt that you committed a violation. You need to go into any investigation assuming the burden of proof is on you, not on the licensing board. There's no greater need for legal representation than in a situation where the odds are stacked against you.
Of course, you can always choose to speak and act on your own behalf in responding to a complaint or a licensing board investigation. But in most cases, it will put you at a severe disadvantage. Hiring an experienced attorney almost always improves your chances for a more positive outcome—or at least one with lesser penalties.
We Can Help You Prepare for an Administrative Hearing
The Lento Law Firm will work with you throughout the process, keeping you informed at every step. We will develop a plan, with your full input, to address every single aspect of the hearing:
- We will find the likely locations of exculpatory or mitigating evidence and determine the bias of the witnesses of the underlying allegations. This means we will uncover texts, emails and any other relevant evidence that can affect your case.
- Our team will identify the kinds of actions you will need to take to begin creating useful and legitimate exonerating evidence to present at the administrative hearing—things that will help preserve your professional reputation. We can assist in finding applicable character evidence, useful paths of therapy or rehabilitation, continuing education, or credentialing.
After putting together our plan, we will communicate to you our goals and strategies for getting there. We'll follow up with an analysis of the potential discipline exposure and keep you informed of progress every step of the way.
It is the Lento Law Firm's task to ensure your awareness of our assessment on results, strategy, and scope of work as soon as possible. Our aim is to minimize your uncertainty and give you all the information you need to make the wisest decision about protecting your livelihood.
Once we have worked together on a game plan, we'll work closely with you to vigorously defend your license. Through our experienced staff and our network of recognized experts, the Lento Law Firm can give you a clear advantage at your administrative hearing.
How Boards Decide
A board delivers its final decision based on evidence provided by the parties in question and after the board gives careful consideration to all of it, based on the findings of law and fact and guided by applicable statutes and regulations.
Findings of Fact
These are based solely on the evidence presented to the board in the hearing process and on the issues in dispute. The record will reflect all evidence presented by each party in the matter—a record which can be a transcript, audio, or video that is captured for posterity.
At this point in particular, it's critical to have an attorney who will help ensure the record is accurate and fully complete so the board can consider every significant finding of fact that supports your license's defense. The weight of the evidence of fact is paramount in these cases.
Another pressing reason to engage a skilled lawyer—because the ultimate decision rests of findings of fact—is that it's important to build your defense by preserving any and all information for any future appeals. If it should happen that you wind up with an unfavorable outcome, an appeal can be a viable option to fight it.
Should the record hold accurate and substantial factual findings, those facts can be shown to the appellate court. Because the facts hold what can be the preponderance of evidence, they are given substantial weight.
That said, there can still be gaps in the record and issues of credibility. One witness may give a statement at the hearing that is contradicted by another witness. The finders of fact must determine which witness is more credible and believable—and the more credible one will be given the benefit of the doubt.
Findings of Law
Additionally, the board must make findings of law, which reflect the statutes and regulations related to their findings of fact. In some cases, this can be clear-cut, with no ambiguity, with an obvious outcome; in others, it can leave a lot of room for uncertainty.
Although the board is typically made up of members who are fluent in relevant regulations related to your license, they are usually not lawyers—another reason to have one on your side—and therefore, may not have experience researching and studying the laws that impact your case. Again, should an appeal be necessary, all of this hard evidence can play in your favor. An attorney can help ensure it's properly documented and consider if you have a basis for appeal.
The board will have a full discussion and about what factual and legal determinations were made and will issue a decision either verbally or in writing. (If it's an oral determination, it's usually possible to get a transcript.)
Legal Counsel After the Hearing
When the hearing is concluded, we work with you to weigh your additional options. Following that, we will put together a constructive plan to ensure that the underlying problems causing the controversy are addressed to prevent any risk of license exposure from happening in the future.
At What Point Should You Hire an Attorney?
Some licensed professionals wait to hire a lawyer until they learn the licensing board is going to hold a formal hearing against them. Waiting that long puts you at a disadvantage from the start. By the time the board decides to hold a formal hearing, they have already been investigating you for some time (possibly for months), and they wouldn't be holding the hearing unless they believed they have significant evidence against you.
If your goal is to prevail, hire an attorney as soon as you receive notice of a formal complaint against you. By involving a sharp legal mind at the beginning of the disciplinary process, you're greatly improving your odds that the matter can be resolved before ever making it to the hearing phase.
A good license defense attorney can very often negotiate to have the complaint dismissed, and almost always negotiate for better terms than you would have gotten otherwise.
We Can Help
The Lento Law Firm helps professionals in a range of occupational fields when their licenses come under threat due to alleged misconduct or other licensing issues. These include, among others:
- Licensed Professional Counselors (LPCs)
- Real Estate Agents
Facing an administrative hearing can be a very daunting prospect. To preserve your professional career, you can call upon us—quickly, before things escalate—to support you before you go before a board that is considering disciplining you.
Call attorney Joseph D. Lento and the Lento Law Firm at 888-535-3686 to discuss your case.