What are the consequences of a criminal conviction when you hold a professional or occupational license?
Any criminal conviction within California for a misdemeanor or felony will result in the notification of your licensing board or agency. There are even certain circumstances that will require you to notify your licensing authority if you are convicted of a crime.
The conviction is likely to lead to an action against your license. It is extremely important for your criminal attorney to understand the consequences that almost any conviction will pose for your professional or occupational license.
Even convictions for driving under the influence or domestic violence are now considered substantially related to most licensee’s qualifications, functions or duties as a licensee. This comes as a surprise to many licensees after they have agreed to plead guilty or no contest in a criminal case and then find that based on the plea and subsequent conviction they may have their license revoked or severely restricted. This can occur even when the licensee has been able to negotiate a plea agreement that does not result in their conviction for a crime of moral turpitude based on the belief that this will avoid a licensing problem. Their criminal attorney either did not know about licensing law or failed to properly advise the client of the potential consequences of any criminal conviction. The definition of what constitutes a crime or moral turpitude has broadened and in some cases the licensing authority looks beyond the actual crime you plead to and will decide to investigate and prove up the facts and circumstances surrounding the commission of the crime to establish a basis to discipline your license.
Any action against your professional license can have other negative consequences as well. For example, physicians and dentists may find that their liability insurance will be cancelled, that they may be removed from insurance service provider lists or hospital that privileges may be revoked. Physicians will find that criminal convictions cause a negative report to be posted about the physician with the National Providers Data Bank. This source is queried anytime a physician seeks new employment and is intended in part to prevent a physician disciplined in one state from moving to another state to practice without disclosing prior license discipline.
On any future license applications, whether within California or in another state, all prior license discipline must be revealed. The failure to do so can be a separate basis to deny a new license application or can establish a basis to revoke a license.
All disciplinary actions become a matter of public record. Most licensing boards and agencies now post pending actions as well as the final determinations online. Anyone can review your license history and status online with a few simple key strokes. In highly competitive industries such as real estate sales or mortgage brokering a competitor is likely to make sure others know all about your license discipline problem.
Should an experienced license defense attorney be consulted when you are facing a criminal charge?
Yes! An attorney who specializes in professional and occupational license defense should be an integral part of your criminal defense team. The right defense employed well before the agency or board governing your license learns of your conviction may make all of the difference in the way things turn out. Sometimes the right defense can prevent a matter from ever being filed against your license.
At a minimum, the license defense attorney can advise you about what steps you need to take immediately to begin to rehabilitate yourself. Rehabilitation is the cornerstone of defending a licensee facing license discipline based on a criminal conviction.
Do I have a duty to self-report criminal charges or criminal convictions if I am licensed by the Department of Real Estate?
Yes. To learn more about the requirements, see CA Business and Professions Code section 10186.2.
What will my licensing agency or board do once they learn of my criminal conviction?
Whether you are applying for a license or already hold a license, the matter will be assigned to a trained investigator to collect all of the evidence necessary to establish a basis to discipline or deny your license. This will include the investigator obtaining certified copies of all of the court documents that apply to your criminal case, copies of police reports, obtaining sworn declarations from witnesses or victims and interviewing the licensee regarding the facts and circumstances surrounding the conviction. Although many licensees and license applicants believe that they can represent themselves during the investigatory process, this is a big mistake. If you have been convicted of a crime that is considered actionable by your licensing authority, a disciplinary action will be filed against your license or license application. You will not be able to talk your way out of it during an interview with the investigator and you may make comments or offer evidence that will hurt your case in the long run. While you should always be pleasant with the investigator, remember he or she generally has no authority to close an investigation without further action if you stand convicted of a crime.
What happens after the investigation process?
In most cases, once you have been convicted of a crime, the investigation process is just a matter of the licensing authority going through the motions. The investigator has a checklist of pieces of information that must be gathered and then your file will be sent to the Attorney General’s Office or your licensing authority’s in-house legal department for review by a prosecutor. The prosecutor will file an action against your license or license application based on your criminal conviction.
If you already have a license, the licensing authority will file an Accusation against your license. If you are applying for licensure, the licensing authority will file a Statement of Issues. With either you have a limited number of days in which to respond in order to preserve your right to an administrative hearing before an administrative law judge (“ALJ”). Your failure to respond will result in the loss of your license or denial of your license application by a default process.
Who has the burden of proof in these cases?
If you are a license applicant, you have the burden of showing that you are entitled to a license. Despite this rule, the ALJ will expect the agency to present evidence to support its denial. This is a very simple task for the agency; all they need to produce are certified copies of your criminal court records to show that you have been convicted of the crime alleged in the Statement of Issues. You will have to persuade the ALJ that you are sufficiently rehabilitated since the conviction to be granted some form of a license. Only an attorney experienced in these matters knows what sorts of evidence are necessary for your side to prevail.
If you hold a license, the burden is placed on the licensing authority to show by clear and convincing evidence to a reasonable certainty that there are grounds to discipline your license. Again, in matters based on a criminal conviction this only requires the prosecutor to produce certified courts documents to establish that you stand convicted. Thereafter the burden shifts to the licensee to show that there are sufficient mitigating factors and/or rehabilitation efforts by the licensee to support a lesser form of discipline.
Many licensing cases are resolved by stipulation (an agreement) between the parties. It is important to have experienced legal representation who can advise you in determining whether a proposed stipulation is a good outcome under the circumstances or if you are better off proceeding through the administrative trial process.
I am a former prosecutor with the State of California and I have successfully prosecuted hundreds and hundreds of license disciplinary cases. In 2004 I left my position with the state and began my successful practice of defending licensees. I have worked hard to earn the respect of the licensing authorities and administrative law judges that I deal with and I always strive to have these relationships benefit my clients.