Saturday, March 14, 2015


One of the largest and most satisfying parts of my practice is helping professionals respond to and defend themselves against allegations of professional misconduct. Such allegations can cripple careers and ability to earn income much faster than many criminal charges. But the discipline process can be opaque, the evidence supposedly supporting allegations highly questionable, and the standards upon which one is judged simply unknowable. Here are my 5 top tips for professional misconduct investigation survival. 

1. Get Early Legal Advice - one hour of a lawyer's time could save you 100 hours of lawyer time later. Make the call early, and don't try to deal with a professional misconduct investigation all by yourself. Whether you are a physician, dentist, pharmacist, veterinarian, nurse, teacher, engineer, accountant, architect, lawyer, police officer or real estate agent, there's no need to guess about how to best respond to a notice informing you that you're under investigation. Bodies like the College of Physicians and Surgeons, Royal College of Dental Surgeons, College of Pharmacists, College of Veterinarians, College of Nurses, Professional Engineers, Certified Professional Accountants, Association of Architects, Law Societies, police discipline tribunals, and real estate associations all have their own particular rules, and you can't make any assumptions about how each will or will not approach an investigation into alleged misconduct.

2. Have a Lawyer Act as an Intermediary for you with your Professional Regulator - many professionals don't realize that professional misconduct investigations are very unlike police criminal investigations. In police criminal investigations, the police will rarely share the information in their possession until charges have been laid, and any decision to participate in the investigation will be solely a one-way affair where you provide information but receive nothing in return. By contrast, professional misconduct investigators will often be willing to collaborate with your legal representative in gathering the facts and arriving at recommendations and conclusions. Being proactive with professional discipline can often pay great rewards, like informal resolution, whereas in criminal investigations the best advice usually is to stay silent and let the investigation run its course.

3. Get Help in Gathering and Organizing the Evidence You'll Need to Respond to Professional Misconduct Allegations - professionals facing professional discipline need to search for and preserve exculpatory evidence before it disappears. This means obtaining witness statements; copying, organizing and analysing documentary records; finding and preserving emails, texts and other forms of electronic communications. Calling defence evidence in criminal trials is relatively rare, in part because of the heavy burden of proof beyond a reasonable doubt faced by the prosecution, where the defence can remain silent and wait for the prosecution to fail of its own accord. However, in professional misconduct proceedings the burden is only proof on a balance of probabilities, and what is and is not acceptable professional practice involves a host of grey areas, so you need to prepare early to present a strong defence case that goes far beyond just your personal testimony that you did nothing wrong.

4. Be Represented in Any Professional Discipline Board or Tribunal Hearing - regardless of whether your professional regulator is inquiring into your competence, your record keeping, your conduct concerning clients, or your capacity and health, appearing with a lawyer will permit you to present your best case in terms of evidence and legal submissions. These hearings are much more like courts of law than informal get togethers. They are very legalistic in nature in terms of applicable rules, procedure, and precedent. The college which regulates your conduct will be represented by legal counsel, as will be the board or tribunal itself. You'll therefore be at a great disadvantage if you don't have some legal expertise on your side. This assistance need not be enormously expensive (because these hearing usually don't last for weeks on end, unlike some criminal trials), and might even be covered by your professional insurance - but you need to ask your insurer.

5. Be Legally Prepared with Resolution or Sanction Precedents - the prospects of resolving your case favourably will usually depend on what kinds of past precedents can be located and analysed, demonstrating that other individuals in your situation received favourable treatment that you also deserve. A lawyer will usually be the one best placed to find, analyse and present such precedents for you.

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