Temporary Suspension Challenges: Insights from Legal Experts at Bertolino LLP

Transcript

Speaker 1: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney.

Speaker 2: 0:14

Welcome back to Know your Regulator. I’m Simone Murphree, your host, and today we’re diving into a topic that is so important for license holders to understand temporary suspensions, or often referred to as emergency suspensions. These are critical processes that can affect your license and livelihood. Joining me today are two experts who bring unique perspectives to this discussion. First we have Tony Bertolino, the managing partner of the Bertolino Law Firm and a seasoned defense attorney who has guided countless clients through these situations. Welcome, tony, thank you, Simone.

Speaker 3: 0:52

I’m glad to be here.

Speaker 2: 0:53

We’re also joined by Troy Bollier, Bertolino Law Firm’s Director of Legal Services, who’s here to share insights from the regulatory side. Thanks for being here, Troy.

Speaker 1: 1:03

Thanks, simone, really excited about talking about this topic today.

Speaker 2: 1:07

Absolutely Well, let’s get started with the basics. Troy, can you explain what a temporary suspension is and why regulatory agencies issue them?

Speaker 1: 1:18

Sure.

Speaker 1: 1:19

Well, I think the important thing for people to remember is that state regulatory agencies are there to do a job and that job is to protect the public.

Speaker 1: 1:30

It’s a common misconception that people have that they’re there to help license holders or fill some kind of professional role, but their primary job is to protect the public.

Speaker 1: 1:45

Job is to protect the public In a temporary suspension situation and every agency is a little bit different, but the basics are that in a temporary suspension the agency is claiming that there is some imminent danger to the public health, safety or welfare.

Speaker 1: 1:57

You know, the classic example would be say, if there was a doctor who was practicing while using drugs and they were high and they were maybe doing medical procedures or surgery, that exposes the public to some imminent danger or some risk their health, their safety, if doctors are seeing patients and they’re under the influence of drugs. So if the agency believes there’s adequate evidence to show imminent danger to the public, health, safety or welfare, that’s the typical standard that they’ll use to go into some type of courtroom setting and say we need to temporarily, on an emergency basis, suspend this person’s license because there’s this risk that tomorrow somebody in the consuming public could be harmed. They could be injured by a medical practitioner. They could be injured by a lawyer who’s not looking out for their interest in doing something dangerous, whatever that profession may be. They need to immediately put a pause on the person’s ability to practice.

Speaker 2: 3:02

Sounds really intense. Tony, from your perspective of a defense attorney, what kinds of scenarios will lead to temporary suspensions?

Speaker 3: 3:15

Well, as you can imagine, a lot of these cases.

Speaker 3: 3:17

We analyze them on a case-by-case basis but typically, to echo a little bit of what Troy mentioned regarding the imminent danger standard that’s used in determining whether or not these are granted by the administrative law judges we typically see in our firm cases that rise to the level of imminent harm or potential harm, and defending clients who are accused of crimes, accused of using illicit drugs on the job.

Speaker 3: 3:55

You know situations like that and obviously those are situations that could potentially pose an imminent danger to patients or the public. It’s one of those situations where you know the impact that it could potentially have on a license holder is very, very significant and it’s, you know, with temporary suspensions. You know you really need to. You know when looking at different scenarios we tend to look at and urging our clients to address them quickly. You really don’t want to be behind the eight ball and start your case off on the wrong foot. When you know having a temporary suspension granted, you know, by an administrative law judge, you can imagine it has a could have a lasting impact on your livelihood. You start your case off on the wrong foot and eventually you can be in a position to where you face revocation altogether and lose your license altogether.

Speaker 2: 4:48

Yeah, absolutely. What should a license holder do if they find themselves facing a temporary suspension?

Speaker 3: 4:55

Well, you know in previous podcasts that I’ve done. I’ve mentioned it before and I think that I need to even overemphasize it, now more than ever the importance of hiring a legal counsel, someone who’s experienced in these kinds of matters. All too often we have clients that have come in and they’ve experienced a suspension of their license because they represented themselves and they were under the impression that, hey, I can handle it on my own. I know that. You know I can learn the procedure, I can Google it, I can get on chat, gpt, I can do all these things and become a lawyer overnight and handle this on my own.

Speaker 3: 5:35

And that’s not the case, particularly, you know, with emergency suspensions whether you’re dealing with an emergency suspension where you’re able to participate in the hearing, you’re dealing with an emergency suspension where you’re able to participate in the hearing, or dealing with an emergency suspension that was granted without your participation. At the end of the day, you know you trying to handle it on your own is a huge, huge mistake. I mean, you got to imagine or understand that. You know you’re dealing with staff attorneys who are well experienced in this area. They have a solid understanding of not just the law but the procedures and they’re. You know, they’ll, without a doubt. You know, you know, but what is it? Hand your head over to you, you know, in these hearings, and you don’t want to be in a position like that, I mean. So it’s so critical that you hire legal counsel for something like this.

Speaker 2: 6:29

Yeah, it sounds like it. I mean, it sounds like there’s a lot on the line and things happen really quickly. Let’s talk about emergency hearings. Troy, can you explain what these are and how they differ from regular disciplinary hearings?

Speaker 1: 6:45

Right. So the key thing, like we talked about a moment ago, is the nature of the hearing. What’s the focus? The focus on these is the agency is alleging there’s an imminent danger to the public. That requires putting a pause on somebody’s ability to practice until the regular complaint process can play out, and so what that means is that it’s going to be a fast-paced situation. The process varies somewhat from agency to agency, but there’s a lot of commonalities and similarities in process. The main thing is that most agencies typically have a process where they start with having a hearing within the agency, typically a panel of board or commission members.

Speaker 1: 7:34

Whoever makes up the regulatory body for your agency will have an emergency meeting. That’s usually ex parte, meaning both sides are not there and both sides don’t get to present their side of the story. So the first that a license holder may be hearing about this is after a hearing has been held and a decision has been made to temporarily suspend their license. So it’s important to realize that you may not get advance notice. The first time you’re hearing about this is when this written order from the agency says you’re a danger. You can’t practice until further notice. Now there are some options, which again gets back to Tony’s point. You need a lawyer to digest, understand that written order, what you can and can’t do, how that impacts your business, your professional license, the patients you’re currently seeing that may have matters or issues, or healthcare matters that need immediate attention. What do you need to do? There are options to fight it as well. It’s not that you’re just going to stand still and necessarily just take that suspension.

Speaker 1: 8:51

Each agency is different.

Speaker 1: 8:52

Some of them most of them typically give you an expedited right to go in front of a neutral administrative law judge and make your case and that judge will reconsider what the board, commission, agency panel has already temporarily ruled on.

Speaker 1: 9:05

But that can be some amount of time Sometimes it can even be months and months until you’re in front of that judge and that whole time you are suspended, and so it has a huge impact again on your clients, your business, your ability to generate revenue and remember this is at a time when you’re fighting for your livelihood, so of all the times to need cash and revenue to be able to pay legal expenses. Now is the point where the agency has said, no, you can’t practice, so you can’t generate revenue. So it’s definitely a very expedited, very complicated and intensive process and there may be even options that a good lawyer should be considering that are outside of the temporary suspension process. For example, if the agency has done something improper or exceeded their authority, you might have a basis to sue them in state district court and get an injunction and get your license reinstated. So that’s something again why you need a lawyer to help you through this very convoluted, complicated process.

Speaker 2: 10:12

Yeah, no, it sounds like that is very crucial, Tony. What does this accelerated timeline mean for the license holder and their defense? Does this accelerated timeline?

Speaker 3: 10:22

mean for the license holder and their defense. It generally means you have to be ready to act quickly and prepare as quick as you can. These hearings are sometimes scheduled within days at times. So it’s important that you follow this accelerated timeline and do what you can to prepare the necessary defenses. I mean these are essentially going to be mini bench trials, very quick hearings. You know where you’re going to be putting on evidence you’re going to. You’re going to have witnesses testify. You’re going to have, you know very, you know limited because of you know there’s not going to be a whole lot of discovery that you’re going to be able to do. You know it’s not going to be a drawn out kind of pre-litigation or pre-trial kind of kind of kind of procedure that you’re going to have access to.

Speaker 3: 11:13

I mean these are going to be very quick on your feet kind of hearings and it’s going to. You know at times, you know you’re going to you’re not only going to be putting on witnesses that you’ve had limited opportunities to, to to interview in preparation for the hearing, but you’re going to have a limited time to even submit written documents and evidence to to the judge. So, with all that being said and having an accelerated timeline like this. You know you know we keep emphasizing it the importance of the legal representation. You know the you know the stakes are very high when, when you’re facing these kinds of quick evidentiary hearings that you’ve got, you know, little or no preparation time and, and you know, with all that being said, the process can be overwhelming for someone who tries to do this on their own. So it’s going to be critical again to hire experienced counsel.

Speaker 2: 12:09

Yeah, absolutely. What kind of evidence or arguments are most effective in these hearings?

Speaker 3: 12:18

You know it really comes down to understanding the burden, the standard, the burden. You know the state has the burden to show that imminent harm to the public, and you know so obviously there’s going to be a need to present the evidence or the arguments to counter and challenge that burden and to show that there is, you know, no immediate or imminent risk of harm to the public.

Speaker 1: 12:42

So at the end of, the day.

Speaker 3: 12:43

You know these agencies, they have that burden of proof and they’re going to have to show that there is a risk of harm that’s imminent. And you know the kind of evidence and arguments can really depend on the strength of the witnesses that are going to be testifying. And, as I mentioned before, it’s a very limited kind of discovery that’s permitted, if any at all. And so you know you’re going to be limited in, you know the documentation that you’re able to obtain as part of your arguments and as part of your defense. So you know it’s important that you work very closely with your attorney in gathering all that necessary evidence.

Speaker 2: 13:20

Really important, very important to know, troy, what have you seen on the regulatory side?

Speaker 1: 13:28

Tony is exactly right. The state has the burden. Right, they’re the ones going into court, into some type of legal setting, and saying, hey, this person is so dangerous that there is imminent threat to the public health, safety or welfare. So it’s what lawyers will refer to as an extraordinary remedy. Right, it’s an unusual request. It’s not lightly granted by judges, so the state really has to bring their A game. They need to bring the evidence, the goods, to show clearly that this person is a danger to the public. Just saying, hey, this person may have violated the standard of care or they may have violated some of the technical rules and requirements, that’s not going to be enough. Plain old complaint. We go through the normal extended process. If you want to show that you need this license holder temporarily suspended, you need to show there is something imminent. It’s going to happen tomorrow and it’s going to expose the public, somebody who’s using this person’s services to immediate danger.

Speaker 1: 14:38

And so what I’m looking for, as a former regulator, is I’m looking for recent instances. I don’t want this to be something that happened six months ago. I want it to have happened yesterday or last week, and I also want to show, if I can, that it’s happened more than once. Right, this is just not one fluke, one off time, this is a pattern. This is repeated and it’s going to continue to repeat. And then I want to show that this is some really bad stuff that imminently exposes the public to harm. I like to call it the oh my gosh factor. You know, it’s almost like when you describe what happened, you know the judge in their head’s going, oh my gosh. So if you’ve got those three things recency, the oh my gosh factor and multiple instances then I think the state’s in a good position to say judge, look, if you don’t temporarily suspend this person tomorrow, he’s going to do this again and again, and again and it’s going to, you know, expose the public to some really dangerous stuff.

Speaker 2: 15:39

Yeah, and that is, I think, so important for our listeners to hear and have explained. I may be thinking that some listeners are going to go through this and kind of wonder oh no, you know, is my license at risk Because this process is so fast and so swift? I think that explanation of you know what exactly can can land you at in a temporary suspension or with a temporary suspension, or can land you in that courtroom is so good for our listeners to know. In looking at giving our listeners some practical advice, tony, what are your top recommendations for license holders in these situations?

Speaker 3: 16:22

Well, I’ve mentioned before, of course, the importance of contacting an experienced attorney immediately, but more important than that, hiring that experienced attorney and when speaking with that attorney, in preparation for these kinds of hearings, it’s so critical that you’re transparent with your lawyer and really explaining the full story of what happened, as your attorney is going to be going into these hearings Again.

Speaker 3: 16:50

They’re very fast paced at times and nothing angers attorney more than anything than to go into a court and being sandbagged and not having the full story and suddenly this disparaging kind of evidence comes out for the very first time in the middle of an evidentiary hearing.

Speaker 3: 17:11

Talk about an oh my gosh moment. I mean nothing’s worse than that jaw-dropping experience from your own lawyer when you know you weren’t really told the full story. So that’s so critical is, you know, be very transparent when talking with your lawyer after hiring him or her. The next thing, of course, is documentation and with documentation I actually advise a lot of my clients you know, turn your social media off. You know there’s always that chance that staff attorney could be snooping around social media and find you on Facebook and, you know, discover that you’re at a party and you’re drinking excessively and you know, or you’re doing drugs God forbid it’s caught on some type of video, you know I mean you’re doing whatever you can to mitigate the circumstances and that includes, you know, limiting any kind of evidence that may be out there that could be used against you.

Speaker 1: 18:08

And then, of course, staying, you know.

Speaker 3: 18:11

You know very composed and professional throughout the entire process, working closely with your lawyer. You know being responsive to your lawyer. You know, when the lawyer gives you know suggestions and requests, honor those suggestions and requests, do what you can to be part of the team and cooperate fully in your own representation. I mean, when you’re facing these kinds of matters you really can’t put all of your faith in your own lawyer. You’ve got to be a team member as well and work very closely with your lawyer as a team member. You’ve got to be a team member as well and work very closely with your lawyer as a team member. So yeah, and you know, really do what you can to. You know, put on the very best defense that you possibly can.

Speaker 2: 18:50

Yeah, absolutely Really important points there. Tony and Troy, what would you add?

Speaker 1: 18:57

from the regulatory side side. Yeah, I think it’s really important as best you can to know that agency and to know what your rights are, to know how their process works. Again, every agency is a little bit different. This is a generic overview and generally this is how it works for most agencies. But every agency has their own little quirks and tweaks about how they handle the process. And that’s why, to Tony’s first point, it’s just so important to get legal counsel who does these kinds of things every day, because you just have zero margin for error.

Speaker 1: 19:31

There’s very short amount of time and, quite honestly, the lawyer that you have and how well they handle themselves in front of that panel or judge and have an impact on the credibility and how the judge or the panel that’s deciding the suspension is going to perceive about your case. And so you know, getting somebody who knows that background, knows what the process is, can advise you about your rights and then, like Tony was saying, you’ve got to partner with that lawyer for a very intensive preparation, pull together what you can in that short amount of time. Again, the goal is to show that the agency doesn’t have a case that there’s this imminent danger to the public. So, whatever you can do to present and say, hey look, there may have been a mistake, but it was a genuine one-off mistake and it doesn’t continue to expose the public to danger. So you really kind of want to just be aware of that process and how to go through it and, again, having a lawyer at your side who knows and has done this is really the key to making that happen.

Speaker 2: 20:46

Yeah, absolutely, it sounds like it. Can you both share examples of cases that you’ve worked on where temporary suspensions were issued? Tony, we’ll start with you.

Speaker 3: 20:57

Yeah, I had a client must have been close to 10 years ago and she was in surgery and she was. There was allegations of imminent harm to the patient due to her usage of opioids while she was in the emergency room working and she at the time we argued that you know she had her eyes closed and you know there was argument made by the staff attorney that she passed out from the opioids. But you know it was found that she indeed, you know, was not just high on opioids at the time but actually misappropriated some of the drugs from her own patients to obtain the opioids. And of course, in that situation the court found an imminent harm to the public, particularly to the patients that she handled, and granted an order suspending her license.

Speaker 2: 22:09

Yeah, talk about an oh my gosh moment, right?

Speaker 3: 22:13

Oh yeah, for sure, that was a tough one. I mean, you can’t win them all. You get cases you get what you get. When you’ve got cases where you’ve got bad facts, you just do what you can to defend and represent your client the best you can under the circumstances. You know, so you’re you’re going to get situations where you know, from my perspective, even though we were representing her, looking back on it, you know it probably was a situation that that justified suspending her license. I mean, without a doubt looking back on it.

Speaker 2: 22:47

Yeah, and I mean that’s a great example of how you know this, all of this kind of happens and why having an attorney is so important. I mean, if she had gone into that with no legal representation at all, I mean I can imagine things would have been, you know, a lot worse.

Speaker 3: 23:06

Right, absolutely. She had her day in court. I mean, that was the important thing, exactly yeah. A capable defense.

Speaker 2: 23:12

Absolutely Troy. What about you? What are your insights from the regulatory side?

Speaker 1: 23:33

suspensions that typically surrounded instances where there was accusations of fraud working in the real estate appraisal regulatory sphere. It was not all that uncommon, especially during the years surrounding the mortgage crisis. Back about 15 years ago, we would get complaints that seemed to show that people were going around and fraudulently representing they had gone out and done the property inspection associated with the appraisal, for example, when they really hadn’t gone, or they had sent someone who was unqualified, or that they were otherwise engaging in fraud, and that was continuing to happen. And we would have, you know, instances where we could get homeowners or we could get recorded you know doorbell camera footage to show hey look, the person that supposedly came out here was not you. You were the one authorized and had the license. Instead, oh, look, like Tony was saying here’s Facebook footage showing that you’re skiing in you know British Columbia, or that you’re in front of the Washington Monument or something, at a time when, according to your records, you did 10 um, you know appraisals. You know in in Texas and so it looks, you know, obviously really bad. It’s kind of that oh my gosh moment. And you’ve got some documents to back it up. But you’ve also got these witnesses saying, no, this person never came out. I’ve never seen this person before, you know, in my life and so we did a number of those.

Speaker 1: 25:11

Obviously, that were typically successful, because, you know, good regulators are going to make sure they’re only going after those where they really have the goods. Again, this is a balancing of interests, right, the public needs to be protected from imminent harm, but you also have a license holder who has a valid legitimate license, and so I know, as a former regulator, I took that very seriously and wanted to make absolutely sure that I could present a solid case and that I wasn’t pushing the envelope or reaching beyond what was there. But more recently, I’ve done emergency temporary suspensions on the defense side and I had a recent experience, in fact fairly recently. That was actually a great success story. This is an example where an agency goes too far and they push beyond the boundaries of that standard of imminent harm to the public, health or welfare, and so we were able to get into court and demonstrate to the judge very clearly. Hey, you know there may be problems there may be, you know standard of care issues, but those are appropriate for the normal complaint process. You have not shown that there is imminent danger to the public that something bad is going to happen tomorrow. Like Tony gave that great example, it’s very common to see you know drug use in a professional setting, especially in healthcare, to be one of those go-to things where it’s like, okay, we need to go into court and stop this person for practicing because you know people’s lives are on the line.

Speaker 1: 26:51

You know they’re doing, you know open heart surgery and the person might not be have the mental acuity or even you know the capacity to play their role and serve as a healthcare provider.

Speaker 1: 27:04

So in this case, yeah, we were able to show there’s no imminent harm, this needs to go the normal process and we got the judge to say no, suspension is improper and that needs to be lifted. So again, it’s really important to have an attorney that knows those standards and processes and can advocate very effectively for you. The other thing that I would say is, definitely, if you can sometimes talk to the staff at the agencies, talk to the attorney, see what kind of evidence is there. See, sometimes they will share. We would share informal discovery with the lawyer because we were so comfortable that, hey, we know this is solid evidence and it was helpful to the defense lawyer, because then they can have a very frank and honest conversation with their client. Because, at the end of the day, clients need to be very well informed about the situation and their options so they can make good decisions that make sense for them.

Speaker 2: 28:14

Absolutely Well. This has been a very insightful discussion. Before we wrap up, what final advice do you have for our listeners, Tony?

Speaker 3: 28:26

Well if the listeners are license holders, my biggest advice is behave yourself. Well. If the listeners are license holders, my biggest advice is behave yourself. Because you know a lot of these hearings. You know they come about due to misbehavior. You know crimes are committed or you know there’s usage of drugs or usage of alcohol. You know it really comes to misbehaving. And so my you know. My first piece of advice is behave yourself, do what you’re supposed to do.

Speaker 3: 28:57

But if you find yourself misbehaving and you find yourself in front of an administrative law judge or facing some type of emergency hearing or a hearing that encumbers your license on that temporary basis, don’t wait to seek help. Do what you can to hire good legal counsel. Do it as quick as you can. I mean it’s important that you invest your time, energy, money at the front end when you’re facing these kinds of matters, because if you wait it’s going to cost you more on the back end. So it’s critical that you know if you’re going to have a good chance of salvaging your career, your livelihood, your reputation at the early beginnings of these emergency suspension hearings. It’s important that you act quickly and from that it starts with hiring good legal counsel.

Speaker 1: 29:59

I would say so. Yeah, absolutely, troy. Anything that you would like to add? Yeah, I would echo what Tony says.

Speaker 1: 30:03

You know we’ve been talking a lot about imminent harm to the public. That’s the standard the state has to prove, and so they need to show that this conduct is imminent. But you know the rapid nature of these processes. It really makes you know the need for legal representation imminent as well. Right, I mean, this is not something where, well, we might have court in six or 12 months down the road. I mean, things are happening super fast and you will wake up and find out that you can’t practice and you can’t, you know, pay your mortgage, you can’t pay your employees, your business has been ground to a standstill halt, and so it’s really important.

Speaker 1: 30:47

Time is a huge factor in these cases, and I know a lot of people want to think well, if I just talk to the investigator and I explain to them, you know they misunderstood and that may be the case you may be completely right. Yes, they’re misunderstanding. Yes, the agency is overreaching. I’ve seen it happen myself but you don’t want to be doing that. You want a lawyer to be doing that, a skilled advocate that’s trained, knowledgeable about this. Done it before and can come to the table quite honestly, with some gravitas. This is not the first time. You know that this lawyer has dealt with this agency on a temporary suspension matter and they have a history and they know oh, so-and-so knows what they’re doing and is going to hold us our feet to the fire. So you want all of that to come to bear when you’re talking to the agency and trying to get them maybe to stop and to agree to lift the suspension and if not, then you’re ready to move forward through the hearing process.

Speaker 1: 31:46

So I would just stress the importance of time. Time is so critical. You have very little time. Don’t waste that time trying to do it yourself. You know you wouldn’t sit around trying to give yourself your own root canal and then you know, maybe a month later, say, well, maybe I ought to go see the dentist. You know, if you’re having heart palpitations, let me see if I can just give myself a regimen, a baby aspirin, and I don’t need to go see the cardiologist. No, go to the cardiologist today. And that’s what I would say about these situations. Time is critical. Immediately contact an attorney and seek legal counsel.

Speaker 2: 32:22

Absolutely excellent advice. Thank you, tony and Troy, for joining us today, and thank you to our listeners for tuning in. For more resources, you can visit our website, linked in the description below. Until next time, subscribe to Know your Regulator and learn how you can engage with your regulatory agency. Thank you, guys.

Speaker 3: 32:45

Thank you.

Speaker 1: 32:46

Thank you, simone. Know your Regulator the podcast that inspires you to engage.