Licensing Issues

Paul Kish uses his 36 years of experience when he represents professionals such as doctors, nurses, attorneys, and others who are licensed by various regulatory boards and organizations and the person faces a criminal investigations or prosecution. People who have a job that requires a professional license or whose employment is otherwise regulated by the government need an especially experienced attorney if the government prosecutes or investigates that person for an alleged crime.

Paul is an aggressive advocate for all of his clients, but when the Defendant is also licensed or regulated, that advocacy has to account for additional areas. There are usually collateral consequences when a professional is investigated or prosecuted. An experienced criminal defense lawyer will take into account these additional consequences when defending against or trying to resolve these investigations or prosecutions.

If a professional is charged with a crime, he or she also needs to defend against a parallel action that is usually brought by the medical board or other similar regulatory body. In some areas, like the securities industry, the regulated person is obligated to cooperate in and answer inquiries from the regulatory investigation, such as the SEC or state regulatory body. This can pose a huge problem for the criminal defense attorney. On the one hand, anyone charged with a crime is protected by our venerable Fifth Amendment, which as most people know means that a person can remain silent and has no obligation to say or do anything. However, if remaining silent means that there is an adverse impact on that same person in the regulatory proceeding, then the professional and his or her attorney need to carefully weigh and balance their options. Sometimes, it is safer to “take the Fifth”, remain silent and try and win the criminal case. Other times, it is better to make a full breast of all the facts in order to show both the criminal prosecutors and the regulatory body that the professional did not do anything wrong. Each case is different, and professionals should be wary of any lawyer who says he or she “always” handles these cases a certain way.

Many criminal cases against professionals arise out of their jobs. For example, many people in the medical field are caught up in healthcare fraud allegations or supposed misuse of a medical license by over-prescribing certain drugs. People in the financial world are sometimes accused of securities fraud, bank fraud, or the mail and wire fraud laws that are so popular with federal prosecutors. Although many cases against professionals arise out of their field of employment, other matters arise in completely different contexts. Some people get caught up in other fraud, not related to their work as in a certain profession. For example, some medical professionals face allegations of crime unrelated to their jobs as medical practitioners. The lawyer who handles these criminal cases for regulated professionals also needs to account for potential collateral consequences arising out of the criminal case that has nothing to with the Defendant’s work or with the area regulated by the board.

Some professionals, like many people, simply want to “get it over with” when they are accused of a crime. The lawyer who works with such a client needs to carefully research and counsel the client about the potential things that could happen after a plea of guilty to the criminal charges. The federal government has some especially onerous rules imposed on people in the medical field, and even a plea to a relatively minor offense can essentially prevent a doctor or other professional from practicing in his or her chosen field for a long period of time. Getting it over with might be appropriate sometimes, but the lawyer and client need to think it through before doing so.

Another tricky area is the obligation that many professionals have to report misconduct or an investigation to the regulatory board. Once again, there is no single answer. The lawyer and client need to carefully assess legal obligations to report, but if the answer is not crystal clear, they need to then determine which is the best option. Self-reporting sometimes is best, but other situations call for a careful monitoring of an investigation if it will never amount to any real difficulty for the regulated individual.

Licensing issues for professionals facing criminal cases are tricky. Paul has handled these many times in his 36 years defending people against criminal investigations or prosecutions. Give him a call if you have a similar situation you would like to discuss.