Tuesday, April 10, 2012

Do I Need a Lawyer for a Professional Discipline Hearing?

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.

One of the areas of legal practice I engage in is professional discipline, where I represent individuals either being investigated or prosecuted for professional misconduct offences. 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.

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.

  • 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? 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.

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.

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