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Tips on Handling Your First Occupational Licensing Case

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A ROOKIE STEPS UP TO THE PLATE
TIPS ON HANDLING YOUR FIRST OCCUPATIONAL LICENSING CASE
BY LOUIS LING, ESQ. & HAL TAYLOR, ESQ
Most attorneys will never represent a client before one of Nevada’s occupational licensing1 boards. But a client who cannot find an attorney who regularly practices in this area may turn to one he or she or she has worked with in the past, even if that attorney has never handled a licensing case. That attorney might be you. By contrast, attorneys who serve as prosecutors for licensing boards are often very experienced in this area. They may have handled dozens of licensing hearings. They already know the applicable statutes and regulations and, most importantly, they know the licensing board members themselves and how they view the cases that come before them. If you are an attorney who does not normally practice licensing law, how do you level the playing field without making matters worse for your client? Our intent is to give some straightforward perspectives from both the prosecution and defense sides about what you can do to assist your client before formal disciplinary charges are filed. We are going to present this information as a dialogue between the authors, with Hal offering a defense persepective, and Louis offering the prosecution’s perspective. As a starting point, assume that you represent a licensed professional. A former client has filed a complaint with the licensing board accusing that client of “unprofessional conduct.”2 Your client has never had a complaint lodged against him or her, and the client believes he or she did nothing “unprofessional” in this case. Your client is upset, disappointed and angry.
the allegations calmly, professionally, and, most importantly, realistically. Many of these complaints are dismissed without ever going to hearing. LOUIS: Boards receive many consumer complaints that never lead to formal complaints.3 The board may have no jurisdiction, the complainant may be seeking a remedy the board has no authority to grant or the actions alleged may not constitute a violation of law. Every board has a screening mechanism to make these determinations. Hal’s client needs to understand that if there is any possibility that an actionable case exists, the boards must investigate the complaint. Hal’s job is to convince whoever is doing the screening that the matter should not move forward.
Find the Law:
LOUIS: Confusingly for the uninitiated, there are a number of sources of law applicable to licensing cases. NRS 233B is the Nevada Administrative Procedure Act, and NRS 233B.127(3) provides general guidance regarding the preliminary proceedings in these cases. Furthermore, you should always determine whether or not the board is subject to NRS 622A, a more expansive statement of procedural requirements that may apply.4 Licensing boards also adopt regulations that may affect disciplinary cases. Many recent regulations have not been codified for years, so always look up the board’s NAC5 chapter on the legislature’s website (www.leg.state.nv.us). HAL: For immediate information, go to the board’s website. The applicable statutes and regulations are usually there, including procedural rules. It also has contact information; identifies staff and board members, perhaps even the board’s counsel; and minutes of past meetings for reference. Review
Things May Not Be As Bad As They Seem:
HAL: The client is understandably upset. The client’s professional reputation and livelihood are both being challenged. You need to help them address
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the board’s disciplinary procedures. Most likely they are in the regulations. Get the lay of the procedural landscape.
Get the Facts:
HAL: I have my client (the licensee) write a response to the allegations. It should be expansive. An edited version may eventually be filed with the board, but first I need to understand my client’s view of the case. I decide early if I am going to take the case and, if I am, I alert the board in writing. I ask for a copy of the complaint that was filed. The board may not have to give it to me until a formal complaint is filed, but often it will. I try to have this in hand before we finalize our response. LOUIS: Depending on the board’s process, the board may be at an advantage in the early stages of the proceedings. The board may have conducted some preliminary investigation, and may have collected facts that the licensee does not have.
with Hal at the beginning to answer his questions and avoid misunderstandings later. Every board has its idiosyncrasies. I can explain the particular processes that lie ahead to help matters run smoothly and fairly. Most board prosecutors operate with an “open file” policy, so I may be able to provide information from the board’s file to Hal to assist him in ascertaining the facts of the case. HAL: Unfortunately, while Louis is one of the more enlightened prosecutors and has an “open file” policy, many others may not be so open until a formal complaint is filed. You should ask.
Prepare the Response:
LOUIS: Often the decision whether to take a matter to formal hearing is based solely upon the complaint and the response from the subject. It is critical that you remember your audience, board members and staff when preparing the response. Testy, defensive, attacking language or language that is presented as the licensee’s, but reads like a lawyer wrote it, will
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Contact the Board:
HAL: By the time you meet your client, he or she may only have a brief amount of time left in which to respond to the board. You may need more time to provide an adequate and effective response. Your goal at this stage is to avoid a formal complaint, and your first response is critical; you will live with it throughout the rest of the case. A wellwritten response is better than one whose only virtue is that it is timely. LOUIS: Be sincere in requesting more time. From the board’s perspective, it is obliged to address complaints in a timely manner; boards are judged, in part, by their timeliness in addressing complaints – by the public they serve, by the governor that appointed them, and by the legislature that reviews their activities. An attorney who asks for more time when the request is not sincere may harm the defense’s credibility. If you need more time, ask; you will probably get it, but do not burn goodwill by abusing the process early. HAL: When you first contact the board, find out who will be prosecuting the case and introduce yourself as soon as possible. Often the prosecutor will be glad to assist you by answering your questions. LOUIS: I agree. As a prosecutor, it is my job to assure that the licensee receives fair, unbiased treatment. I would rather speak
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tiPs on HanDling Your first oCCuPational liCensing Case
rarely serve your client well. Whenever possible, the tone should be peer-to-peer, because that is the way the board will be reading it. HAL: Agreed. At the initial stage the boards want to hear from your client, not some attorney. I may assist my client with language and organization, but the client keeps his or her own professional “voice.” If I have a legal argument to make, I make it separately.
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what he or she did. Boards must approve settlements, and most boards see “no-contest” type language as dodgy and inherently suspect, so a settlement may need admissions to one or more of the allegations to get anywhere with the board. HAL: You and your client may have some difficult decisions to make regarding admissions. Here too, you can be very helpful, but you need to understand what the board’s “comfort level” is on admissions, and good prosecutors can help you in this area if you have developed a rapport with them.
Talk Settlement:
LOUIS: Every board has what I call its “culture.” This includes how it will initially review and process complaints, what their hot issues are at the time, and what the general temperament is of the board. Within this “culture” is its attitude towards settlements. Many boards welcome settlements and encourage settlement of the routine types of cases it sees. Some boards disfavor settlements and prefer to hear all meritorious cases. HAL: This is where a review of the board’s minutes may be helpful. A board’s attitude toward settlement will be reflected in the minutes of prior meetings, and you may be able to glean whether settlement is possible and what your client can expect based on how the board has handled similar cases. Louis is right; it is critical that you gain a realistic view of the case and how it is apt to play out at hearing before this board. Until you have, you are not in a position to explain your client’s professional exposure to her so that she can make an informed decision whether to go to hearing or to try to settle. LOUIS: Practice tips from my perspective: 1. know your case before you contact me regarding settlement. I cannot go to my client with only your vague notions regarding what you think might be a fair resolution of the case; and 2. have a heart-to-heart with your client. If your client engaged in the alleged acts, your client will fare better if your client comes clean regarding
Final Comments:
HAL: Your client’s chances for a good resolution to a licensing case, including possible dismissal, are dependent upon your getting up to speed as soon as possible on the law, the board procedures and the facts of the case. Then your client can make a realistic assessment of his or her options. LOUIS: Remember that you are setting a tone with your first interactions with the board and with me, its counsel. Be honest and straightforward with the board. I am used to lawyers and their attitudes, but my boards hate “lawyer games.” Please treat the boards with respect, not contempt. The board members are not lawyers, but they are not dummies; they are often accomplished peers of your client and they know much more about your client’s profession than you do. Your task is to help them make the right decision so that your client receives the best possible outcome to her complaint.
louiS ling has represented the state’s licensing boards for 20 years as a senior deputy Attorney General, in-house general counsel, Executive Secretary for the Board of Medical Examiners and now as private counsel to a number of the state’s licensing boards. hAl tAyloR is admitted to practice in Nevada, California and Illinois. He has more than 25 years’ experience in professional licensing law. Previously he was legal counsel for the Nevada State Contractors Board and the Nevada State Optometry Board. He was Chief of Prosecutions – Business Professions, for the Illinois Department of Professional Regulation. He defends many professionals before licensing boards in this state.
1 Alternatively, “professional licensing.” 2 A general catch-all term that is often fleshed out in the board’s regulations. 3 A formal charging document very similar to a criminal complaint. 4 NRS 622A.120(1) provides a list of 15 boards that are exempt from NRS 622A. 5 “Nevada Administrative Code”
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