— Every so often, the team at Simas & Associates, Ltd. encounters a new story about a licensee who undertook to represent himself or herself in an administrative proceeding. The seeming informal nature of administrative proceedings somehow lures intelligent, successful, licensees and business owners into thinking they can represent themselves. Unfortunately, as in the case discussed in a recent blog entry
, this can lead to utter disaster.
There is a saying, "he who represents himself has a fool for a client." And while individuals are always free or forced due to circumstances outside of their control to self-represent, there are countless examples where that is not the case.
"This is a big deal," explains Steven L. Simas
, owner and founder of Simas & Associates, Ltd. "However, a number of times we encounter individuals who think, 'this is not a big deal,' or 'I just need to clear up this misunderstanding. And many of the times they are wrong. Really, really wrong."
A neglected complaint from a consumer, can lead to a complaint with the underlying licensing agency. A complaint with the underlying licensing agency will almost certainly lead to at least a preliminary investigation of the complaint.
"Many times," continued Simas, "the licensee will just blow off the investigator. Or worse yet, tell a half-truth over the telephone that cannot be substantiated with the underlying records. And the investigator does not respond by telling the licensee, 'GOTCHA!' Rather, they internalize the results of the interaction and begin the process of presenting the potential accusation or citation to their supervisor in enforcement. We are lucky when a licensee takes the inquiry from the investigator seriously and gets us involved. However, such is lucky and rare with many professions."
Then the Accusation hits.
"The Accusation is usually when it stops the licensees in their tracks," explained Simas. "Listen, I understand and empathize with many of the licensees because they are usually small businesses, with families, and bills, and health issues; a million other things on their mind. So, they may not have taken the complaint or investigation seriously. Understandable. And when the Accusation hits, then they start to look for answers."
Basically, the question is, "what does this mean?" or "what do I need to do now?
"And we help them. We explain the entire administrative hearing process
to them. We inform them not only of the adversarial process of the hearing but also the almost always more important need for evidence of rehabilitation, mitigation, and good character. Some hire, some listen, and some go-a-marching on their own."
When professional licensees go on their own, they are typically surprised by the formality of the process
. While administrative law and administrative hearing practice may not be as formal as a criminal or civil proceeding, it is really a reduction in inches, not feet, yards, or miles like many professional licensee assume.
"So many self-represented licensees fail to abide by pre-hearing orders, fail to participate in discovery, fail to attempt to negotiate a settlement, fail to subpoena documents or witnesses, and just come to a hearing empty handed," continued Simas. "Of course, they do not understand how to object to evidence or cross-examine witnesses. And unless they were listening, of course they failed to supply evidence of mitigation
. So, of course the self-represented licensee often does poorly at the time of decision."
Sometimes the self-represented licensee was worse off even attempting to defend himself than if he had just let a default decision go into place.
"By the time a decision is reached by an agency after hearing," continued Simas, "an administrative record now exists. And the administrative record will demonstrate the opportunity the self-represented licensee had to object, cross-examine, and present his or her own evidence. And given the substantial evidence test in actual civil court, most of these cases have no worthwhile or even credible grounds upon which to seek re-hearing or overturning by way of a petition for writ of administrative mandate
Of course, hindsight is 20/20; but in a significant percentage of cases, revocation can be avoided.
"While this does not mean the licensee will get off completely unscathed all of the time," concluded Simas, "the vast majority can be resolved in favor of a probationary license. Many cases just involve being competent about the procedures of the hearing, ensuring the other side has the evidence to prove its claims, being entirely truthful at hearing, and presenting evidence of contrition and mitigation to sway the severity of the discipline."
Keep this in mind as a preeminent example of – “please, do not represent yourself.”
For more information on Simas & Associates, Ltd. and its professional licensing
and healthcare licensing
practice areas, please visit our website at www.simasgovlaw.com