Parallel Criminal and Administrative Licensure Proceedings
| Publication year | 1991 |
| Pages | 213 |
| Citation | Vol. 20 No. 1 Pg. 213 |
1991, February, Pg. 213. Parallel Criminal and Administrative Licensure Proceedings
With increasing frequency, practitioners who represent licensed professionals in disciplinary hearings are discovering that contemporaneous criminal prosecutions are under way against the same clients. This article discusses several of the problems that often result, including the order of the procedures; trial and judgment considerations; and civil fines, penalties and sanctions.
Criminal and administrative proceedings may take place simultaneously and, more often than not, they do.(fn1) Thus, the licensee often is powerless to choose which case will be tried first. This does not apply where the refusal to testify automatically leads to sanctions, or where the "purpose" of the administrative proceeding is to obtain information for the criminal action. However, such circumstances are infrequent.(fn2)
If a choice is available, it appears that more "baggage" is created when the administrative case takes the lead. When the criminal case goes first, there are limitations on the amount of discovery that can be done and on the distribution of the prosecution's evidence, data and trial preparatory information. There also is a prohibition on the prosecutor's distribution of grand jury materials, at least until criminal judgment is reached.(fn3)
Conversely, as discussed below, damaging testimony from a criminal trial normally will be available in the subsequent administrative case. Further, in the event of a conviction or plea--- whether the witness pleads nolo contendere or guilty, or in cases where judgment is deferred(fn4)---the principles of res judicata, collateral estoppel and misconduct per se become operative.
If the administrative case goes first, more expansive civil discovery will be available to enhance the preparation of the criminal defense. An administrative "acquittal" will avoid discipline, even if an adverse criminal result eventually occurs.
Nevertheless, disadvantages of leading with the administrative case are numerous. Discovery results will be available to the prosecution, although occasionally, civil discovery can be stayed on a specific showing of injury, where the criminal case is proceeding simultaneously.(fn5) In addition, as described more fully below, the products of broad-scoped administrative searches and subpoenas will be available to the prosecution.
For example, Colorado administrative agencies may share their investigative and regulatory files with other regulatory and law enforcement agencies, unless clearly statutorily prohibited.(fn6) Finally, damaging administrative testimony will be available to the criminal prosecution.
Summary license suspension is constitutional, as long as the opportunity for administrative hearing thereafter follows "without appreciable delay."(fn7) Where serious criminal misconduct is charged, particularly if it is directly related to the licensee's profession or occupation, summary suspension is a real threat. Its implementation dramatically changes timing perspectives and limits many otherwise available defense options. Under such circumstances, the licensee must consider disciplinary settlement more seriously and on an accelerated schedule.
Failing settlement it often is imperative to accelerate the hearing process because the licensee is suddenly without a livelihood. However, even in this situation, the attorney cannot ignore how the administrative considerations play against the criminal case.
Serious strategic decisions regarding the exercise of constitutional rights in parallel proceedings cannot be overlooked. Administrative and criminal counsel should coordinate their efforts to determine when and how each of these rights is to be invoked or waived.
The licensee's right to invoke the Fifth Amendment is available in administrative hearings(fn8) (although the right is not available to corporations(fn9)). However, the administrative factfinder may draw a negative inference from that refusal to testify, if competent evidence on the subject is independently admitted.(fn10) The practitioner must be careful in counseling a client about invoking the Fifth, because waiving the right in one proceeding ordinarily means waiving it in subsequent proceedings.(fn11)
A parallel consideration is raised by the existence of statutorily created privilege, which blocks-the testimony and records release by licensed professionals such as accountants, attorneys, physicians, nurses and psychologists.(fn12) Normally, privilege cannot block agency record access for disciplinary purposes. Thus, information the prosecution cannot otherwise obtain becomes available via the administrative forum.
A special instance arises when the licensee also is the patient or otherwise privileged person. In such circumstances, the licensee personally can invoke the privilege and be assured that it will not be overcome by the disciplinary forum exemption.(fn13)
There are some Fourth Amendment limitations on searches and subpoenas in the administrative context, but not many. "No-entry" administrative searches are constitutional. They can produce results available to both the administrative and criminal forum.(fn14) Warrantless administrative searches, with entry, also are usually approved, especially in "heavily regulated businesses."(fn15)
Administrative subpoenas are valid if (1) the investigation is for a lawfully authorized purpose, (2) the information sought is relevant to the inquiry and (3) the subpoena is sufficiently specific to...
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