Law and Strategy in Licensing Disciplinary Proceedings
| Publication year | 1989 |
| Pages | 647 |
| Citation | Vol. 04 No. 1989 Pg. 647 |
1989, April, Pg. 647. Law and Strategy in Licensing Disciplinary Proceedings
The infamous Al Capone was once quoted as stating, "You can get much further with a kind word and a gun than a kind word alone." This sentiment may be good advice for defense counsel, as well as occupational and professional licensing agencies and their attorneys. Advocates and agencies need to be well grounded in the law and in legal procedures (the "gun"). However, the "kind word" is an approach that should not be overlooked.
This article focuses on negotiating and litigating disciplinary cases with the various agencies(fn1) operating under the umbrella of the Colorado Department of Regulatory Agencies ("Department"). It is important to note that, while creation of the numerous divisions, boards and commissions established under the Department falls under Title 24 of the Colorado Revised Statutes,(fn2) each is specifically governed by its individual organic statute, as well as any rules and regulations promulgated by said agency. The manner of implementation of these rules and regulations properly may be the subject of an advocate's review. A solid understanding of the interplay between the Administrative Procedures Act, CRS § 24-4-101, et seq. ("APA"), and the agency enabling statute is essential before proceeding in defense of any administrative action.
Clients may seek an advocate's advice at either of two stages: (1) regarding a problem the client believes potentially will lead to a disciplinary investigation by the licensing agency; or (2) after the client has actually received a written communication from the agency informing the client of a complaint against him or her. If the problem is a potential one, strategy and timing become of utmost importance. Advocates who successfully advise their clients at this stage are usually familiar with the recent disciplinary history of the agency and have some knowledge of individuals comprising the agency. The composition of administrative agencies changes fairly regularly, as may their attitudes toward disciplinary proceedings.
The agency must give the licensee prior notice in writing of facts or conduct which may warrant the institution of an agency proceeding.(fn3) This is often referred to as a twenty-day letter, as several agencies request a response to be filed with the agency within twenty days of mailing. If a client has engaged an attorney prior to receiving this notice, there are two threshold issues which must be decided: (1) whether it is possible that the issue in question may be ethically and legally diverted from the agency's attention (e.g., settlement with the complaining person or voluntary change of actions on the part of the client); and (2) how to best posture the client to be ready in the event the agency decides to investigate a complaint. This may involve preparation or preservation of documents and testimony, location of witnesses, compiling evidence that no valid problem for which the agency may consider action actually exists, that the client has attempted to alleviate the problem or compromise with the complainant, has been tested by a chemical abuse program or has entered into a chemical abuse program on a voluntary basis.
At this stage, the prudent attorney will instigate an investigation to determine what facts actually exist or may be perceived as existing by the agency. Most advocates are aware that the initial facts as expressed by the client may not be those ultimately presented at hearing. The conceptualization of the client's problem or potential problem may include weighing what the advocate determines to be true or may be discerned by an agency's investigation to be true and the potential disciplinary actions available.
Once the client...
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