How to Minimize Sanctions in Professional Misconduct Proceedings

When facing allegations of professional misconduct, the first goal for any professional should be to advance a strong defence which can result in the professional regulator dismissing all of the allegations as unfounded. However, when that is not possible, the second goal should be to minimize the impact of any misconduct proceedings on the ongoing practice of your profession.

Professional misconduct proceedings can for many professionals actually have more detrimental outcomes than criminal proceedings for most of the population, because criminal proceedings rarely have the potential to permanently take away a person's livelihood. Not so with professional misconduct proceedings.

The good news is that professional misconduct proceedings embrace a wide spectrum of sanctions, ranging from admonishment, counselling or cautions on the low end, through to fines, suspensions and revocation of licence. Completely and permanently losing a licence to practice is rare, but it does happen, and needs to be guarded against at all costs.

Retaining someone to engage in resolution negotiations for you with the regulator at the earliest possible stage of proceedings - even at the investigative stage - can be the best way to minimize sanctions for professional misconduct. And even if a negotiated sanction isn't possible, strong representation before a hearing tribunal from someone who is familiar with past precedents of others in a similar situation who received reasonable sanctions will also benefit you.

The usual meaning of the term "in good standing" with your association, and thus your continuing ability to work in a professional capacity for an employer or yourself, usually only requires your licence to not be suspended or revoked. It does not preclude ongoing or completed discipline proceedings, as ongoing proceedings are only allegations, and even completed findings of misconduct are usually remedial in nature - seeking to push a professional in the right future direction, rather than snuffing out any future chance of change and contribution to serving the public.

The challenge with some professional discipline proceedings is the lack of an intermediate range of sanctions. For example, for the defence of some police officers whom I represent from time to time on internal administrative discipline matters, the maximum penalty might jump from forfeiture of 10 days pay to dismissal, with nothing in between. A negotiated sanction can therefore be important to minimize the risk that 10 days pay appears to a sentencing tribunal to be too minimal, and thus they jump directly to dismissal.

Proposing at an early stage a concrete remedial plan to the regulator can also be an important part of a strategy to minimize sanctions for professional misconduct. This remedial plan might include medical treatment of some sort, the taking of particular kinds of courses, or even working for a time under the supervision of another professional. You shouldn't leave it to the regulator to come up with a plan, you need to be proactive and then sell the regulator on a sanction you can live with. True, you aren't guaranteed they'll accept your plan, but with a firm enough advocate representing you, the regulator will realize the great costs it may suffer from conducting a protracted discipline hearing against you, and the risks it runs in not being successful at such a hearing. One particularly attractive incentive may be to voluntarily offer the regulator something that it might not be able to obtain through a tribunal imposed sanction, and in return request that no suspension or revocation of licence be imposed.

I find that the sanction outcomes of professional discipline proceedings aren't as bound by past precedent as are criminal and regulatory prosecutions in the courts. Discipline bodies can get more creative as to sanctions, your advocate can form a closer and more collaborative relationship with the regulatory investigators and prosecutors than would ever be possible in a criminal prosecution-defence situation, and thus an optimal outcome for you which minimizes the impact of any sanctions on the practice of your profession can be quite achievable.

Top 9 Questions Professionals Need Answers to About Professional Misconduct Inquiry Processes

Photo credit: Lis Feria, 2012.

It's common to think of getting a lawyer to represent you when faced with criminal or civil court proceedings. The stakes are high, the rules of procedure and evidence complicated, so a lawyer seems the natural choice. But what about hearings that aren't in a court of law? Are lawyers needed there? When should legal advice be sought for these non-court hearings, or during the investigations that lead up to them ?

I know there's some legitimate hesitation over involving lawyers in all aspects of human life, even though the law permeates our lives. Some private matters - like minor disputes between neighbours - might be best sorted out without lawyer escalation. The stakes are low, there is no imbalance of power between the parties, and the risk of legal errors is minimal. But in disputes where the stakes are high, there is a power imbalance, and a legal error can lead to a very bad outcome, you really should consider involving a lawyer as soon as possible.

Just because the prosecution can't lead to jail doesn't mean it isn't serious. Permanent termination of your professional livelihood could have a far more devastating effect on you and your family than perhaps even a criminal conviction in a court of law.

The challenge with professional discipline matters is that they can creep up on you, where one moment you are working with your regulator to achieve voluntary compliance on routine regulatory requirements, and the next you are being dragged before a hearing tribunal accused of misconduct. With the police, you might be on guard from the start with respect to what you say, know that you generally don't have any duty to assist the police with most investigations, and realise that the police require prior judicial authorization in order to demand and seize records from you. Not so with professional regulators.

In exchange for the privilege - not right - of practicing your profession, you've explicitly or implicitly agreed to be subject to all sorts of rules and intrusive information gathering powers. The quite reasonable goal is protecting the public from the few shady professionals out there who would take advantage of their professional positions in order to abuse the trust of the public, secure unreasonable financial advantage for themselves, or flaunt the ethical rules governing the profession. The tricky part for every professional is navigating the interface between the rules and the public, which usually takes the form of a professional regulatory body and could also manifest itself through an employer like a hospital.

The Top 9 Questions

To take the example of physicians, if you are asked about your conduct concerning the care of a patient a host of legal questions could arise. The top 9 questions you need to be asking yourself about the process are:

• Who are your required to respond to? 

• What information must you provide? 

• What are the consequences of not responding or not providing all requested information? 

• What could be the consequences of your disclosing facts which could lead to an investigation into your own actions or the actions of others? 

• What should you do if accused of professional misconduct and how can you best demonstrate your innocence? 

• What kind of settlement with your professional regulator might be negotiated? 

• What kind of evidence is admissible before a professional discipline tribunal, and are the rules different from those applicable in a court of law? 

• What kind of rules of procedure govern discipline tribunals? 

• What sort of rights of appeal do you have if convicted of professional misconduct by a tribunal?

These are all questions that a lawyer may be best placed to answer.

How to Choose a Lawyer and Save on Legal Fees

If you're looking for a lawyer to assist you with professional discipline matters, make sure you seek out one with a background in these kinds of cases because they straddle the criminal and civil litigation realms - not all criminal or civil litigators will be willing to undertake or be familiar with the work. Unlike criminal investigations, you may actually be required by law to provide information to a professional misconduct investigator, however unlike most civil matters there can be penal consequences for failing to cooperate.

Rules of procedure and evidence before professional discipline tribunals can be quite unique to each tribunal, and are generally less formal than those you will find in a court. But as a regulated professional you still have rights, including rights to an investigation and hearing process that operates in a manner  consistent with principles of natural justice.

While professionals being taken before a discipline tribunal may be more able to afford legal representation than the general public when dragged into a criminal or civil court, professionals should not underestimate the potential resources required to mount a vigorous defence to professional misconduct allegations. Hearings can be lengthy and complex, and appeals can extend proceedings. Legal Expense Insurance is available in Canada at reasonable cost to cover legal representation in many professional discipline situations, especially for healthcare and education professionals.

Involving a lawyer as early as possible during the investigative - rather than formal hearing - stage of a regulatory professional misconduct inquiry is likely the best strategy for minimizing your legal fees, as the lawyer will be able to guide you on which information you do and do not have to provide to regulators, and might be able to negotiate a settlement of your matter prior to it going before a formal tribunal.

Learn How the D3 and TAD Principles Can Save Your Professional Career!

Credit: Jennifer Wilson; University Western Ontario News

Anyone who is a professional risks being accused of misconduct at some point in her or his career. Because the standard for proving that misconduct is generally only proof on a balance of probabilities (just more than 50%), rather than the proof beyond a reasonable doubt standard of criminal allegations, you need to be ready to much more proactively rebut professional misconduct than you would in a criminal investigation situation.

You're usually going to need to present written responses to initial misconduct inquiries, and later testify under oath to defend yourself if those allegations progress to a full tribunal hearing. What this means is that you need to practice your profession defensively, being always aware that any action (or lack of action) that you decide upon could potentially lead to a misconduct allegation.

Now I know that taking this advice to extremes can lead to paranoia and working life paralysis, where you'll be afraid to even start work each day for fear that something you do could lead to a discipline investigation being launched against you. But the opposite extreme where you just do what you subjectively think best, without turning over your actions in your mind in comparison to objective professional conduct standards, will equally lead you down a potentially quite dangerous path.

So how to get on with your professional work life, protecting yourself and your livelihood, while at the same time being able to take decisions and enjoy your job? I would suggest there are two principles to follow: the D3 principle, and the TAD principle. These principles weren't created by academics, just by me out of a result of my years of work in the professional misconduct defence legal field.

Embrace the D3 Principle

The D3 principle stands for: document, document, document. This is the principle closest to my heart as a lawyer, and addresses situations after they have happened. I have several professional discipline clients who have, in my opinion, potentially strong defences available to rebut allegations of professional misconduct levelled against them, but who lack anything more than their own personal (and unfortunately sometime vague) recollections about what really happened and who really said what to whom concerning the events in question.

In the teeter-totter that credibility contests can turn into, you don't want to get stuck in the position of only having your own sworn testimony and current recollections of events that might have happened years before to defend yourself with. Having notes taken contemporaneously with events, including detailed dates, times, people spoken with, close paraphrasing of actual conversations, and back up documents are all vital to defending your version of the story.

Now I know document, document, document might seem like an overstated principle, but I find some of my clients don't even get past the first "document" in protecting themselves. You want to preserve all your emails, notes of all your telephone conversations (preferably preserving voice mails), personal notes of your activities, back up documents like video recordings, radio logs, security footage, and witness names and contact details.

I'm not suggesting you do this for every facet of your professional life. But you must do so for situations that set off your spidey sense tingling! You might even at the time write letters to others involved, in order to confirm that they agree with your version of events. Don't just stick your head in the sand and hope that nothing comes of a situation.

Expand to the TAD Principle

The TAD principle is really a more preventative version of the D3 principle: Think, Act, Document. This means that for situations where your gut is telling you there might be some professional ethics risk, you slow down, THINK through the potential ramifications of doing or not doing something (and maybe obtain advice from your professional regulator), ACT only after have taking that time to reflect, and again DOCUMENT your actions, and the thought processes and consultations that went into that Act.

How often are these dangerous situations going to come up? Probably not every day. Though perhaps once a week. And I would suggest certainly once a month. If you aren't wondering if a situation is professionally dangerous at least a few times a year, you aren't trying hard enough.

I've defended teachers, accountants, police officers and medical professionals all accused of misconduct, and the common desire on both my and my clients' parts has always been a desire for better records of the events in question, actually kept by my clients, rather than being potentially selectively retrieved by professional regulatory investigators and prosecutors.

Practicing your profession defensively meaning spotting the problem situations before they explode. You're going to miss a few of them - it happens to all of us. But if you've at least documented most situations, you will greatly enhance your chances of a successful professional misconduct defence, giving your lawyer and yourself something to work with to rebut allegations during an investigation or hearing, rather than just taking blow after blow from the prosecution's evidence, and being only able to offer up a weak "I didn't do it" in your own defence.

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.