Sunday, September 19, 2010

DEFENDING PROFESSIONAL and OCCUPATIONAL STATE LICENSES: State-wide Practice of California Licensing Agencies Doesn't Pass the Smell Test

A unique drama plays out almost daily in the niche practice of licensing lawThat field typically consists of appealing from a denial of a State professional or occupational license or defending against a license revocation or other discipline against a license by State licensing authorities. The most critical initial issue for the potential client usually is not whom he or she will select as legal counsel, but whether the at-risk client should spend any money at all to obtain or defend an occupational license. 

There are some specific and particular reasons why licensing practice is so burdened by this issue. Typically, by the time the licensing attorney first meets the potential client, the client has engaged in multiple substantial interactions with representatives of the State’s licensing department or agency. And in all of these previous encounters, the State’s representative will have repeatedly suggested to the applicant or licensee that they “can” utilize an attorney — or not. Even the forms by which the licensing authorities give official notice of the procedural rights of the licensee or applicant make clear that representation by an attorney is strictly optional. Clients consistently report that State licensing authorities confide in preliminary or incidental remarks that “most” persons with licensing disputes do not bother to obtain legal representation.

The chronic and purposeful efforts of the licensing agencies to discourage licensees and applicants from retaining counsel is an unseemly practice which, while perhaps not per se illegal, discredits and distorts the agencies’ reason for being. Why has the State adopted — in consistent practice if not by overt written standards — any interest in or preference for the lack of legal representation for regular lay-persons’ participation in adversarial processes? These adversarial processes are formal evidentiary proceedings in which applicants’ and licensees’ abilities to earn their livings hang in the balance. How is such practice consistent with the licensing agencies’ stated and publicly-funded mission of protecting the public from incompetence and dishonesty in these regulated services? 

The State’s dubious “advice” is provided to a vast range of licensees and license applicants working (or intending to work) in more than 800 occupations. Some of these occupational groups, such as barbers, vehicle salespersons, and nail technicians, are comprised of relatively unschooled and unsophisticated individuals. Others, such as accountants, veterinarians, doctors, and dentists, are typically highly educated, sophisticated and well-compensated. But almost none of them understand the hearsay rule, or its unique role in administrative proceedings. And almost all of them erroneously believe that the Fifth Amendment protects them from self-incrimination in the licensing hearing. Almost none of them knows that the result of the adversarial hearing is a proposed decision — a decision that the licensing agency is free to reject if the agency disagrees with the Administrative Law Judge’s view of the evidence and the applicable law. Most of them think that their hearing will be decided on the basis of the equities of their situation rather than the mechanical application of statutes and agency rules. And, not surprisingly, these misdirected unrepresented person’s cases typically result in a proposed decision upholding the agency’s decision to deny or discipline the license. By overwhelming raw numbers and percentages, the unrepresented lose the evidentiary battle for a favorable proposed decision. 

The ugly truth is that not one of the licensees and applicants subjected to the State’s assurances about the lack of need for a lawyer is benefitted or served by the State’s unspoken encouragement to represent themselves in the fair hearing process.

If the State has the requisite evidence to serve the public interest by denying an occupational license application, or revoking an existing license, how is that legitimate and vital State purpose furthered by attempting to cause the affected applicant or licensee to forego the advice and guidance of counsel? 

Perhaps the invidious quality of the State licensing agencies’ unwritten but chronic practice to encourage unrepresented appearances in the administrative process would be less offensive if these practiced inducements to forego the aid of counsel were not  undeniably and overwhelmingly successful. Day after day and year after year, the daily calendars at every Office of Administrative Hearings location show that more than 80% of the license applicants and licensees whose livelihoods hang in the balance are unrepresented. They wouldn’t have gone without a lawyer in defense of a misdemeanor for which they could reasonably expect a fine of about a thousand dollars. Concerns about the burdens of a permanent criminal record would have disposed of any ambivalence. But, with the State agencies’ not-so-subtle prodding, hundreds of people a year go without legal representation in a formal, reported, adversarial proceeding where the opposing interests are represented by Deputy Attorneys General, a proceeding in which expensive educations and years of internships and employment experience may be made null by barring the occupational door, a proceeding where individuals’ means of earning a living — perhaps the only such means available or practical — will be declared off-limits. 

Why does the State of California engage in this effort to stack the deck against its occupational license applicants and licensees?  Isn't it time – past time – for the consumer protection arm of the State government to abstain from this manipulative and gratuitous practice?

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