The Intersection of Criminal Defense and Professional Licenses

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

Thanks for joining us today on Know your Regulator, the podcast that inspires you to engage. I’m your host, simone Murphy, and today we’ll be discussing a very important topic the crossover between criminal and professional license defense. Your host, simone Murphree, and today we’ll be discussing a very important topic the crossover between criminal and professional license defense. As a licensed professional, what you do outside of your day-to-day career could have an impact on your license and livelihood. In criminal defense attorneys, your defense strategy could aid or hinder your client when it comes to their professional license. Joining me for this crucial discussion is Troy Bullier, a seasoned professional license defense attorney at Bertolino Law Firm. With years of experience representing licensed professionals before regulatory agencies, troy has seen firsthand how professional and criminal matters can intersect.

Speaker 2: 1:03

Also with us today is Tony Bertolino, managing partner of the Bertolino Law Firm. Tony brings a wealth of experience in complex licensed defense cases and, in addition to leading the firm, he has a unique perspective on how leadership and practice intersect in these situations. And finally, we’re excited to welcome Justin Keiter, a distinguished criminal defense attorney from the Keiter Law Firm in Houston, texas. With extensive experience in criminal law, justin has valuable insights on how criminal charges can impact professional licenses and how to navigate those challenges effectively. So we will begin with how these two worlds can collide. How do criminal charges and professional licenses intersect, troy, we’ll start with you.

Speaker 1: 1:54

Well, I would say I think there’s two main ways.

Speaker 1: 1:58

In my experience of being a licensed defense attorney these past few years, but also prior to that, a regulator, you really see two contexts. One is somebody gets a criminal charge that’s kind of unrelated to their professional experience you know they have a substance abuse problem or they’re caught driving while intoxicated or there’s some other issue maybe family violence and that charge then has kind of an impact on their licensing world, because all the state regulators and all the licensing structures are concerned about their overarching job is protect the public, have to look at that and see if that potential criminal conviction or that criminal matter has an impact on the public trust. The other scenario that you see a lot more frequently occurring more and more and we’ve seen it recently even in the educator world with the education exam cheating scandal that’s been in the news is situations where a license holder is doing something in their capacity as a license holder and that may cross over not only violating regulatory requirements but also potential criminal accusations of criminal conduct. So those are really the two main areas you see that happening.

Speaker 3: 3:18

And you know as to how these licensing boards they sort of learn about these criminal cases in the first place. You know that tends to happen in sort of I guess I would say three scenarios. The first would be in situations where you have an applicant who is self-disclosing the criminal background and letting the board know on their application early on. And of course there’s the background checks that are conducted anyway by these regulatory agencies for applicants.

Speaker 3: 3:50

Another way that these regulatory agencies become aware of these criminal cases is also through self-disclosures on renewals of their applications as well as situations in which they have been found to be convicted of a particular crime. And generally speaking, there’s a requirement that within a 30-day period that you report the matter to the regulatory agency, letting them know about the final conviction. And then the third way is just generally someone reporting you you know you happen to have a criminal case that you haven’t self-disclosed or for whatever reason you’ve sort of tried to hide it from the agencies and a third party, someone you know, or maybe an employer or someone who’s aware of your criminal background they make the decision to report you to the boards itself. So those are different.

Speaker 2: 4:44

You know examples in which you know, these licensing boards become aware of criminal cases. Gotcha and Justin. On the criminal defense side of things, how are professional licenses considered and how can they be overlooked in criminal cases?

Speaker 4: 5:02

Great question.

Speaker 4: 5:03

The answer really is if you start with the overlooking part.

Speaker 4: 5:07

Unfortunately, it’s hard to find good attorneys like Troy and Tony who know what they’re doing.

Speaker 4: 5:14

When I can call one of them, it’s almost one of my first calls is when I find out that someone has a professional license.

Speaker 4: 5:21

I know that the ramifications of what my choices are and the strategy that I need to employ is critically important that I talk to an administrative lawyer, because a lot of criminal lawyers don’t realize that even a deferred or a pretrial diversion can be considered a conviction on the administrative side, and so a lot of lawyers unfortunately don’t think about these things. They just want to get their client what they consider the best deal possible, when the best deal possible could be the worst deal possible, and so that’s critically important. And then sometimes I think on the other side, a lot of the administrative lawyers some of the ones who aren’t as seasoned or experienced don’t think about the ramifications of what choices they’re making. They’re saying, oh great, we saved the license, not a problem, and five months later they’re being charged with a felony offense because they’ve basically confessed to all the elements at the hearing and they have no clue what they’ve done and they’ve put themselves in an incredibly precarious situation for their future and their livelihood.

Speaker 2: 6:30

Yeah, it sounds like sometimes kind of having a narrow mindset when it comes to, you know, looking at the end result for your client. You’ll kind of want to expand that and maybe keep your head on a swivel and collaborate a little bit.

Speaker 4: 6:45

Collaboration is critical. I know I’ve worked with Troy and the best way to handle it is to get in it early and have that communication. That I think is lacking on both sides for many.

Speaker 1: 6:58

Yeah, and Simone, to amplify what Dustin’s saying, it’s really important likewise, to have a really seasoned and knowledgeable criminal defense attorney, because sometimes, like Justin was saying, you get in there early and maybe you have some options. Sometimes, depending on the agency, it treats different crimes and different types of convictions differently. So maybe if you can get a plea agreement to a different type of offense that the agency doesn’t consider to be directly related to your license holder’s professional practice, then you might be able to skirt or to lessen the impact on the license, and so there’s a way they can still positively resolve the criminal case but not just put their professional license in jeopardy. Likewise, it’s really important to call someone like Justin early on if you have a regulatory case that looks like it could be fraud or embezzlement or some kind of serious criminal offense and you don’t want your client writing a complaint response or talking to an investigator where, like he said, they’re making admissions to things that could be a felony criminal offense.

Speaker 2: 8:10

Yeah, looking at being proactive instead of reactive, Something I think we say a lot here. Tony wanted to hear from you Do you have an example that you might be able to share with us of a licensed professional who faced disciplinary action due to criminal charges?

Speaker 3: 8:28

You know there’s just a lot of common ways and we handle so many different cases in which you know, we have, you know, a licensee, license holder who happens to face a criminal matter, and many of them that come to uh. And of course we’re very careful with the kind of cases that we take because of the sensitivity of them, but they’re the, the, the text, education agency cases, um, in which the certificate holder, the teacher, is uh accused of some kind of um misconduct with uh, with a student. A common one is, you know, inappropriate communications that they may have with a student and sometimes what will happen is that will overlap with the criminal matter in which, you know, arguably it’s a criminal offense as well when you’ve got a teacher who’s accused of inappropriate communication or even inappropriate relationship with a student. So those are, you know, somewhat on the common ones that we face with on the teaching side.

Speaker 3: 9:28

You know, even on the medical side, nursing, you know, a lot of these case matters that we handle. You know, when it comes to the overlap with criminal charges is, you know, of course we have a good amount of cases in which there’s a standard of care issue going on, but, believe it or not, most of our cases are our license holders who are just misbehaving and, you know, in the form of theft of drugs. Perhaps you know a nurse who’s accused of misappropriating drugs at work, medical doctors who are accused of and arrested for DWIs, you know, these are just sort of behavioral issues that they have. So those are the common ones that I’m seeing in my experience. You know, when handling, you know defending licensed professionals and they’re dealing with an overlap with criminal charges.

Speaker 2: 10:25

And what steps can be taken during this time to protect their license while they’re still dealing with, you know, a potential criminal conviction?

Speaker 3: 10:36

Well, you know, that’s a really good question, and I like to answer that question in a way, in this way you know, at the end of the day, whenever you’ve got a license holder who’s accused of a crime, the most important thing is really to get that license holder in front of a criminal defense lawyer like Justin.

Speaker 3: 10:56

And I think that’s important because we’re talking about someone who’s potentially facing the loss of their liberty versus the loss of their license. So, you know so, the immediate step that I would take would be to immediately, you know, seek out a criminal defense attorney to help with that. You know it’s much more important for you to stay out of prison or jail than it is to protect that license. So you know so. And, of course, you know, working hand in hand between a criminal defense attorney and an administrative law attorney and navigating throughout that process is also critical. But I think the immediate step is is to hire a criminal defense attorney right away, and certainly don’t try to handle it on your own. That’s a big, big, big, big mistake to do such a thing.

Speaker 4: 11:45

Right, I know what I don’t know.

Speaker 4: 11:49

Troy and Tony, and that’s why I call y’all is I know what I don’t know. But I think, if I can piggyback real quick on on what you said, tony, sometimes our clients and maybe I’m wrong are so focused on their license and their livelihood that they just don’t even think about the criminal side, when actually I’ve had some situations and and troy and I had one where I could I was able to successfully negotiate no criminal charge by making sure that they gave up their license and a case quietly went away. And you know, like we always say, I say on the criminal side to a lot of my clients, always say I say on the criminal side to a lot of my clients I can live with your decision. The question is, can you? And you know those licenses are very valuable and sometimes they don’t think about their livelihood, they’re focused on their livelihood, not their freedom. And I think making sure I have all the proper paperwork from an agency and making sure that’s drafted and there’s an agreement goes a long way in negotiability on the criminal defense side.

Speaker 2: 12:57

Yeah, that makes sense.

Speaker 1: 12:59

Yeah, and I’d say you know to kind of echo what they’re saying, simone it’s really a holistic approach. You’ve got to look at both sides of that coin and figure out how to thread the needle, and in everybody’s case it’s going to be a little bit different, but there are definitely, like Tony and Justin said, some typical things that you will see along the way that you’re going to have to navigate. But I think the biggest thing is getting a holistic approach from both a criminal defense and a licensed defense attorney so you can plan a comprehensive strategy, like Justin said, that you can live with at the end of the day. So one of the things we really try and do and I know Justin does too is have very meaningful conversations with clients about where they find themselves, what the circumstances are and what the options are about where they find themselves, what the circumstances are and what the options are.

Speaker 2: 13:56

That’s actually a great segue into my next question Are there challenges that attorneys or clients may face in dealing with these license investigations while they’re trying to maintain professional standing during and even after criminal cases?

Speaker 1: 14:13

during and even after criminal cases. Absolutely, it’s a lot of different things that come into play. You know, early on, some things to you know that you have to be concerned with is is this serious enough criminal offenses? Does it have enough connection to your license that the agency might try and temporarily or emergency suspend your license, which is a real challenge, because if they’re successful in that, that really impacts your ability to pay for the legal services that you need. And when I was a regulator you know it’s not something that you want to do lightly, but obviously, if you really believe someone is a danger or threat to the public, being able to do that can be a very effective tool in limiting a licensed consulter’s ability to respond and fight back. So that’s one thing to look out for early on. I think the other thing is you really need to make sure especially if the person has already had conversations with somebody from the government make sure that we don’t have any statements or admissions that could be harmful. I remember many times when I was a regulator. It is amazing what people will put in writing and send to the government. I’ve had people fill out complete affidavits confessing to felony offenses and turn them in, and so you really need to.

Speaker 1: 15:32

You know, be careful about that aspect that you’re not saying things. You know, until you’ve talked with a lawyer who handles criminal and licensed defense stuff, you really don’t want to say much about your case. It’s very challenging Sometimes. If you can find creative legal arguments that really don’t rely a lot on the client saying a lot and coming to their own defense, those can be some of the best defenses. You know, if you have a statute of limitations argument or if you have some kind of fairly legal argument, you know, as they would say in common parlance, you know it’s a technicality. Well, if it’s a legal requirement, then it’s a legal requirement, and so sometimes that can be the best thing. The client doesn’t necessarily need to say anything and can be quiet, but you can still make an argument and maybe get past that. So there’s definitely challenges because, like you said earlier, you’ve got to keep your head on a swivel because you’re essentially dealing with you. Throw one of these stones into the water and it’s a ripple effect in two different arenas.

Speaker 2: 16:37

Yeah, well said, Very well said. Justin. Can you talk to us about balancing the legal strategies in criminal court and the potential long-term consequences for a client’s professional life?

Speaker 4: 16:53

Sure, and just to piggyback off of what Troy said, the segue is perfect, because sometimes if you know that you’re dead to rights. There was another lawyer I was working with on the admin side that was just like let’s just give up. And I said, well, if it’s that open and shut, I don’t know what, I don’t know. And I said, no, have the hearing. If they’re going to call the officer and the complainant in the case, it’s free discovery on the criminal side. If you really think the license is lost, I’m going to go fishing and let’s see what I catch. And sure enough, by the time we were done at that SOA hearing it was one of the only ones I’d ever attended, because it’s not my cup of tea, but I mean I had free access to the investigating detective. And by the time I was done with the detective and the complainant on this theft case, there was no criminal case. They had nothing left, um, and I don’t know how the actual admin side resolved itself. But by that point I ordered that, we ordered the transcript and I looked at the prosecutor, uh, who was looking at the case in a white collar and a large white collar embezzlement case, and said here’s the transcript. Are you going to touch this? They called me back two days later and, like I’m rejecting the charge, we’re good. So best of luck to you and your client.

Speaker 4: 18:19

But you don’t know that unless you’re willing to find someone aggressive to go to go to hearing, and I know Troy did too. Troy took it, didn’t take no for an answer until he got a yes on on what our mutual client wanted. But that long-term effect I don’t think they understand. Clients don’t understand unless they are, unless they’re explained thoroughly the overarching consequences of what their decisions have. You know, I don’t know if that’s going to affect. You might want to take this deal, but I don’t know if it’s going to affect long-term whether or not you make it to a master plumber versus just being a journeyman, if I’m using the right terminology. And you need to take that into account every time with every client into account every time with every client.

Speaker 2: 19:11

Yeah, absolutely. It really sounds like there needs to be a collaborative approach for both the criminal and professional defense. I mean, it sounds like that’s the most comprehensive and best approach to your client. I know we’ve talked about it several times already this episode, but I do want to really drive it home on why this is so critical. The collaboration is so critical. Tony, we’ll start with you first. Can you give us a little bit of insights on some proactive strategies that may be able to be used to mitigate these licensing consequences early on?

Speaker 3: 19:45

Sure, sure.

Speaker 3: 19:47

I think it’s key that licensee who is also facing a criminal matter hire an experienced attorney who can handle both, or an attorney that can handle the criminal side as well as an attorney that can handle the licensing defense side, and hire them at the same time.

Speaker 3: 20:07

I think that’s very, very important so that both the criminal defense attorney and the licensed defense attorney can work together in collaboration to figure out solutions for that license holder.

Speaker 3: 20:19

A lot of times you know you’ve got criminal defense attorneys that are just not aware at all of the administrative law procedure, not aware of the. You know the substantive laws and vice versa with you know licensed defense attorneys, or many of them, are not aware of the criminal implications. So it’s important that you know you hire both at the same time and they’re able to work together. And particularly in using language, for example, plea bargain deals, you know being in a position for a licensed defense attorney to work with and assist a criminal defense lawyer in the drafting of the language in a plea bargain deal, because of course that’s going to have implications down the road on the licensing side. So it’s best to work you know early on in the process if that is in fact what’s happening. You know you don’t end up going to trial and you end up getting it settled out in a plea bargain deal. I think it’d be critical in an effort to mitigate those consequences early by making sure you hire attorneys that work well together and strategizing together.

Speaker 2: 21:31

Yeah, absolutely. Mr Bollier, can you talk to us a little bit about the importance of understanding the regulatory frameworks and the regulatory rules?

Speaker 1: 21:44

Yeah, absolutely. That’s an important thing to consider. I think Justin said it very well earlier. There’s just an alphabet soup out there of state agencies and every one of them is a little bit different, has their own rules, has their own statute, has their own provisions and what may be. You know, a problem or an issue for one type of license may be workable in another. So the first thing is it’s you know, it’s really important to know what are those agency-specific laws and rules, because it’s not just like clients think, oh well, I’ve had a conviction right.

Speaker 1: 22:22

Certainly a conviction can be a problem. But things like deferred adjudication, where your criminal lawyer is saying, hey, you know, if you get through this at the end a deferred adjudication type agreement, you won’t have anything on your criminal record, that’s probably not going to be true for your regulatory license. Most state agencies still have the authority within boundaries to treat that as a conviction. Same thing many times for pretrial diversion, which is even kind of a little bit better deal, where before you even you know the case even really gets very far off the ground there’s some type of agreement to do something on the criminal case to resolve it. Type of agreement to do something on the criminal case to resolve it and then the charges get dropped. But again, that can still have consequences. And then there’s even agencies that say you know what? We have the regulatory authority to come after you, even if you were never charged with the crime, you were just arrested and we think we can independently prove that you did this bad act. We can independently prove that you did this bad act and we might come after you for that.

Speaker 1: 23:29

So it’s really important to know what are those rules, how does that agency look at those types of things and what have they done in the past? What have been similar outcomes? Because you need to think carefully and not just you know, kind of blindly move forward and say, well, I want a hearing, and not just you know, kind of blindly moves forward and say, well, I want a hearing. Because, again, like Justin and Tony have alluded to, you can really kind of open your mouth and insert your foot if you’re making statements under oath and it can really be problematic. That’s why making sure you have lawyers who are collaborating on your side is so important. But yeah, I think knowing those rules and understanding how they fit your particular license is really going to help you figure out what are your options and how, then you can incorporate that with the criminal defense attorney to a good, solid, holistic strategy.

Speaker 2: 24:21

Yeah, absolutely Finding an expert. Having those experts work together in tandem Sounds like that is really key to to having, you know, the best overall representation. Justin, can you talk to us just about how incorporating license defense advice just strengthens overall representation of these clients?

Speaker 4: 24:43

Sure, when you’re, when you’re talking and they have that license, that isn’t the. I think and Troy and Tony will probably agree it is. It is the foremost thing on their mind. Like you know, when I’m talking, like, hey, you’re facing two to 10 years in prison, sometimes the response is just well, what about my license? I just like it’s two to 10 years in prison, what, but what about my license? And so sometimes you can use it as a bargaining chip and sometimes, strategically, you keep it.

Speaker 4: 25:21

I keep it very quiet. I don’t want the prosecutor to know. I keep it very quiet. I don’t want the prosecutor to know and I don’t want them to have an idea of what’s at stake, because then they, then they dig in and I don’t the less you know instead of the more you know for the for from the there are some aggressive agencies. I was shocked when I you know, when they upload everything in the portal at the da’s office. And then I have to share all this discovery with you.

Speaker 4: 25:54

I I’m sitting there looking at an email from an investigator from an agency and I was like my client didn’t even tell me that they had this license and I was like I didn’t understand and he’s like well, yeah, I had that from long ago, but I’m in a different field now. I said, well, that doesn’t, I don’t think that matters, like they’re. They certainly know, and that’s important. And I immediately I called because I don’t understand. Well, so so what? So you’re saying you don’t care about the license. Can I use that as a bargaining chip, you know, to get your case dismissed or reduced or get the charge changed.

Speaker 4: 26:31

But it is so powerful. But sometimes you don’t want the prosecution to know, because then they dig their heels in where the prosecutor is like no, he doesn’t ever need to, that person doesn’t ever need to be in that line of work again. So I know what they want, but I’m not giving it to them. Well, and so that was that was very painful. I mean, that’s the game of survivor outwit, outlast and outplay. And so I had to wait. That prosecutor was just so gung ho. I dragged out the case until I found that, until that prosecutor got moved to a different court. I mean that you know. That’s why it’s critically important. I think your licensing can be your. Your license can be your best defense and your best offense.

Speaker 2: 27:19

Yeah. What it sounds like, though, is that a an expert again really trying to drive it home, because you know, these are the experts. These are the ones who, day in and day out, they practice this type of law.

Speaker 3: 27:31

When you get these two types of experts together, they can really comprehensively look at your situation, find a strategy that puts you in the best light One of the things I’ve and I’ve spoken to Troy about this in the past and I’m glad that you know Justin is mindful of this is you know the issue of the possibility that criminal defense lawyers may be committing malpractice in many scenarios when they fail to obtain information about their client’s license license and whether that could ultimately be used as a bargaining chip down the road, as Justin mentioned earlier, or not.

Speaker 3: 28:13

It’s still important that these criminal defense attorneys are made aware and ask the right questions in their initial interviews with their clients of whether or not they possess any kind of professional license of sorts. There’s that possibility that malpractice could be committed if you don’t. You know if you end up, you know, entering into a deal of some sort, or you know deferred adjudication or whatever kind of potential dismissal from a criminal defense attorney’s perspective, as they see as a potential dismissal of a case. But in fact it is a final conviction by you know the way it’s interpreted by the regulatory agency and lo and behold, you may have just committed malpractice at that point or at the very least you could have an upset client who is going to try to test that malpractice by reporting that lawyer to the bar. So it’s really important that you know. It’s good to see you know lawyers like Justin is mindful of the existence of these professional licenses, that you know that their criminal defense clients possess.

Speaker 2: 29:17

Yeah, absolutely Very insightful, tony, Such a good point to make.

Speaker 4: 29:22

Tony, you are spot on man. I will tell you, my friend, I cringe if I see someone in a coat and tie, a defendant who’s well-dressed, and I see some defense attorney pleading them out and I wonder just exactly what you said. I wonder. I hope they don’t have a license.

Speaker 3: 29:42

Right, right, absolutely.

Speaker 4: 29:45

Because that lawyer may not have one at the end.

Speaker 3: 29:47

Yeah, exactly right.

Speaker 2: 29:50

Well, thank you all again. So much for your time this afternoon. It’s been a really eye-opening episode for our viewers. I think there’s a lot of great takeaways and insights To our viewers. If you are unsure about a legal challenge that you may be facing, consult with an attorney and attorneys. You can always reach out to a trusted colleague or an expert for assistance on some overlapping cases. As always, you can learn more about this topic and enhance your professional career by subscribing to Know your Regulator and until next time, take care. Thank you guys.

Speaker 4: 30:30

Thank you.

Speaker 1: 30:32

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