Top 5 Tips for Professional Misconduct Investigation Survival

Source: Florida Department of Children and Family Services

1. Get Early Legal Advice - one hour of a lawyer's time could save you 100 hours of lawyer time later. Make the call early, and don't try to deal with a professional misconduct investigation all by yourself. Whether you are a physician, dentist, pharmacist, veterinarian, nurse, teacher, engineer, accountant, architect, lawyer, police officer or real estate agent, there's no need to guess about how to best respond to a notice informing you that you're under investigation. Bodies like the College of Physicians and Surgeons, Royal College of Dental Surgeons, College of Pharmacists, College of Veterinarians, College of Nurses, Professional Engineers, Certified Professional Accountants, Association of Architects, Law Societies, police discipline tribunals, and real estate associations all have their own particular rules, and you can't make any assumptions about how each will or will not approach an investigation into alleged misconduct.

2. Have a Lawyer Act as an Intermediary for you with your Professional Regulator - many professionals don't realize that professional misconduct investigations are very unlike police criminal investigations. In police criminal investigations, the police will rarely share the information in their possession until charges have been laid, and any decision to participate in the investigation will be solely a one-way affair where you provide information but receive nothing in return. By contrast, professional misconduct investigators will often be willing to collaborate with your legal representative in gathering the facts and arriving at recommendations and conclusions. Being proactive with professional discipline can often pay great rewards, like informal resolution, whereas in criminal investigations the best advice usually is to stay silent and let the investigation run its course.

3. Get Help in Gathering and Organizing the Evidence You'll Need to Respond to Professional Misconduct Allegations - professionals facing professional discipline need to search for and preserve exculpatory evidence before it disappears. This means obtaining witness statements; copying, organizing and analysing documentary records; finding and preserving emails, texts and other forms of electronic communications. Calling defence evidence in criminal trials is relatively rare, in part because of the heavy burden of proof beyond a reasonable doubt faced by the prosecution, where the defence can remain silent and wait for the prosecution to fail of its own accord. However, in professional misconduct proceedings the burden is only proof on a balance of probabilities, and what is and is not acceptable professional practice involves a host of grey areas, so you need to prepare early to present a strong defence case that goes far beyond just your personal testimony that you did nothing wrong.

4. Be Represented in Any Professional Discipline Board or Tribunal Hearing - regardless of whether your professional regulator is inquiring into your competence, your record keeping, your conduct concerning clients, or your capacity and health, appearing with a lawyer will permit you to present your best case in terms of evidence and legal submissions. These hearings are much more like courts of law than informal get togethers. They are very legalistic in nature in terms of applicable rules, procedure, and precedent. The college which regulates your conduct will be represented by legal counsel, as will be the board or tribunal itself. You'll therefore be at a great disadvantage if you don't have some legal expertise on your side. This assistance need not be enormously expensive (because these hearing usually don't last for weeks on end, unlike some criminal trials), and might even be covered by your professional insurance - but you need to ask your insurer.

5. Be Legally Prepared with Resolution or Sanction Precedents - the prospects of resolving your case favourably will usually depend on what kinds of past precedents can be located and analysed, demonstrating that other individuals in your situation received favourable treatment that you also deserve. A lawyer will usually be the one best placed to find, analyse and present such precedents for you.

Welcome to the New Professional Misconduct Blog

Among the things I do as a lawyer is represent a lot of people in professional misconduct proceedings. People like teachers, accountants, police officers and medical professionals. It's a diverse group, but the one thing they all have in common is that the professional regulator that oversees their conduct has decided to inquire into whether they have contravened some kind of professional standard. Sometimes the concern is competence. Sometimes mental health. At other times, breach of ethical or other legal standards.

The numbers of regulated professionals in Canada is huge. The Ontario College of Teachers alone has 230,00 members (and very well laid out discipline hearing rooms I might add)! Thus I thought a blog devoted to professional misconduct defence in Canada was warranted for those facing disciplinary proceedings, or those seeking to assist them.

The reality is that conviction for professional misconduct might have a far greater and longer lasting impact that a conviction for a criminal offence, because of the way it fundamentally threatens ability to earn a living and effectively deprive the target of decades of hard won educational attainment.

The other reality is that conviction is possible on merely a balance of probabilities standard, not on the much more onerous proof beyond a reasonable doubt criminal standard.

While there's lots of information out there about the criminal court process, and court procedures across Canada are fairly standardized, professional misconduct proceedings can be an opaque and inconsistent realm, where not much is explained in advance, and practices between regulatory bodies can vary greatly.

In this blog, I'll seek to pull back the curtain a bit, and show you through the professional discipline window what really goes on, including how best to respond to investigations, how best to informally resolve matter prior to their getting to a hearing stage, and how best to mount a vigorous defence at a hearing if it's not possible to stop proceedings prior to that time.

While I've by no means dealt with every professional regulator in Canada, I will try to contrast different approach to misconduct investigation and prosecution among regulators, and draw on my experience across an array of professions regulators.