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.