Dogging It: Voluntarily Tanking Your Income Won’t Get You Out of Your Child Support Obligations

pocketsDivorce can bring out the worst in people. Underhanded actions and tricks designed to hurt the other spouse and gain an advantage in the proceedings are all too common. In many cases, a spouse will engage in devious tactics to try to reduce the amounts he or she must pay for child support.

Since support obligations are in part determined based on the assets and income of the parent from whom payments are sought, a less-than-honest spouse may try to make it appear that they have significantly less money than they actually do. This can involve concealing or transferring assets. Sometimes, however, a spouse will also intentionally reduce their income through “voluntary underemployment” or taking a job that pays less than they previously were earning, solely to stick it to the other parent or deny them the child support they deserve.

Luckily, Illinois law provides a way for parents who are intentionally tanking their income to be held to account.

“Potential Income” Used to Determine Child Support Obligations

In Illinois, the basic formula for arriving at a child support amount (subject to variations based on specific circumstances) involves:

  • calculating each parent’s net income, then
  • combining net incomes to determine Total Family Income, then
  • using the Illinois Child Support Estimator to determine the Basic Child Support Obligation, then
  • allocating the Basic Child Support Obligation proportionally based on net incomes.

Initial support obligations are calculated as part of the divorce proceedings but can later be modified at the request of one of the parents if there has been a substantial change in circumstances, such as an increase or decrease in the amount of one of the parent’s incomes. But if it can be shown that a reduction in a parent’s net income – such as quitting a job or taking a much lower paying job – was voluntary and done in bad faith, an Illinois court can base its support calculations on the parent’s “potential income” rather than their actual, reduced income.

Specifically, Section 505(a)(3)(F)(II)(3.2) of the Illinois Marriage and Dissolution of Marriage Act provides that If a parent is “voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income.” A court will calculate that income by determining the parent’s employment potential and probable earnings level based on:

  • the parent’s work history
  • the parent’s occupational qualifications,
  • prevailing job opportunities
  • the ownership by a parent of a substantial non-income producing asset, and
  • earnings levels in the community.

If there is insufficient work history to determine employment potential and probable earnings level, there is a rebuttable presumption that the parent’s potential income is 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.

Every one of us has our own unique career journey which can include ups and downs, setbacks and advancements. Whether a parent’s career choices will be held against them in terms of their child support obligations will depend on their unique facts and circumstances and whether or not those choices were made in good faith or were made solely to skirt their obligations under the law.

Louis R. Fine – Chicago Child Support Attorney

If you have questions about child support, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation. When we meet, we can go through all of your questions, and I will be there to listen to you as well as advise you. I look forward to assisting you

“Potential Income” Used to Determine Child Support Obligations

In Illinois, the basic formula for arriving at a child support amount (subject to variations based on specific circumstances) involves:

  • calculating each parent’s net income, then
  • combining net incomes to determine Total Family Income, then
  • using the Illinois Child Support Estimator to determine the Basic Child Support Obligation, then
  • allocating the Basic Child Support Obligation proportionally based on net incomes.

Initial support obligations are calculated as part of the divorce proceedings but can later be modified at the request of one of the parents if there has been a substantial change in circumstances, such as an increase or decrease in the amount of one of the parent’s incomes. But if it can be shown that a reduction in a parent’s net income – such as quitting a job or taking a much lower paying job – was voluntary and done in bad faith, an Illinois court can base its support calculations on the parent’s “potential income” rather than their actual, reduced income.

Specifically, Section 505(a)(3)(F)(II)(3.2) of the Illinois Marriage and Dissolution of Marriage Act provides that If a parent is “voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income.” A court will calculate that income by determining the parent’s employment potential and probable earnings level based on:

  • the parent’s work history
  • the parent’s occupational qualifications,
  • prevailing job opportunities
  • the ownership by a parent of a substantial non-income producing asset, and
  • earnings levels in the community.

If there is insufficient work history to determine employment potential and probable earnings level, there is a rebuttable presumption that the parent’s potential income is 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.

Every one of us has our own unique career journey which can include ups and downs, setbacks and advancements. Whether a parent’s career choices will be held against them in terms of their child support obligations will depend on their unique facts and circumstances and whether or not those choices were made in good faith or were made solely to skirt their obligations under the law.

Louis R. Fine – Chicago Child Support Attorney

If you have questions about child support, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation. When we meet, we can go through all of your questions, and I will be there to listen to you as well as advise you. I look forward to assisting you

More Changes Coming to How Illinois Spousal Maintenance Breaks Down After a Marriage Does

maintOnce again, changes to Illinois law have and will alter how spousal maintenance awards are determined in divorce proceedings. Amendments to Sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act, some of which became effective in 2018 and others which will be effective on January 1, 2019, come only three short years after legislators for the first time established specific formulas for calculating the amount and duration of spousal maintenance payments.

These changes tweak the calculation guidelines that were set in the last round of amendments. The 2018 changes altered the threshold for applying the guidelines and the percentages used in determining how long a spouse will be required to make maintenance payments. The 2019 changes as to how maintenance amounts will be calculated were a direct reaction to changes in federal tax law that eliminated the tax deduction for alimony payments.

Increase in Gross Income Level for Application of Guidelines

The guidelines established in 2015 only applied when the combined gross income of the parties was less than $250,000 and no multiple family situation existed. As of 2018, this formula now applies to couples with a combined gross income of less than $500,000, significantly increasing the number of divorces which will involve its use when maintenance is deemed appropriate.

Amount of Maintenance Payments

For divorces finalized on or before December 31, 2018, all amounts paid for spousal maintenance or alimony reduce the payor’s taxable income by the same sum. For most folks paying maintenance, this deduction represents a significant tax savings that can ease the burden of supporting an ex.

But the GOP tax plan passed a year ago eliminated that tax deduction for divorces finalized after the end of this year. Maintenance will no longer be deductible for the spouse who pays maintenance while the recipient can no longer include maintenance payments as taxable income. It is important to note that the deduction will still apply going forward for divorces entered this year or earlier.

In response to this significant change, Illinois modified the formula used to calculate maintenance awards. The current statutory formula provides that a maintenance award should equal 30 percent of the payor’s gross income, minus 20 percent of the payee’s gross income.

Example:

  • Husband’s annual gross income = $100,000 (30% = $30,000)
  • Wife’s annual gross income = $45,000 (20% = $9,000)
  • $30,000 – $9,000 = $21,000 in annual spousal maintenance to wife.

The amount calculated as maintenance, however, when added to the gross income of the payee, may not result in the payee receiving an amount that is more than 40% of the combined gross income of the parties.

For divorces finalized in 2019 or later, those guidelines are now as follows:

  • The award should be 33.3% of the payor’s net (not gross) income, minus 25% of the recipient’s net (not gross) income.
  • There will still be a 40% cap, but it will now be calculated using the combined net income of the parties rather than gross income.

Duration of Maintenance Payments

Under both the old and new laws, how long a spouse is required to pay maintenance is based on the length of the marriage. Before 2018, judges were to use the following formula in determining how long payments must continue:

  • Married 0 – 5 years = 20% of the duration of the marriage
  • Married 5 – 10 years = 40% of the duration of the marriage
  • Married 10 – 15 years = 60% of the duration of the marriage
  • Married 15 – 20 years = 80% of the duration of the marriage
  • 20 or more years = court has the discretion to order either permanent maintenance or maintenance equal to the length of the marriage.

Under this formula, for example, a 5-year marriage would result in a 1-year maintenance obligation, while a 10-year marriage would result in 4 years of maintenance payments.

The new formulas are broken down in more detail such that the percentages that apply to an 11-year marriage, for example, are now different than they are for a 14-year one. Specifically, the duration of maintenance obligations are now as follows:

  • less than 5 years (.20)
  • 5 years or more but less than 6 years (.24)
  • 6 years or more but less than 7 years (.28)
  • 7 years or more but less than 8 years (.32)
  • 8 years or more but less than 9 years (.36)
  • 9 years or more but less than 10 years (.40)
  • 10 years or more but less than 11 years (.44)
  • 11 years or more but less than 12 years (.48)
  • 12 years or more but less than 13 years (.52)
  • 13 years or more but less than 14 years (.56)
  • 14 years or more but less than 15 years (.60)
  • 15 years or more but less than 16 years (.64)
  • 16 years or more but less than 17 years (.68)
  • 17 years or more but less than 18 years (.72)
  • 18 years or more but less than 19 years (.76)
  • 19 years or more but less than 20 years (.80)

For a marriage of 20 or more years, a judge has the discretion to order maintenance for a period equal to the length of the marriage or for an indefinite term.

Judge May Deviate From Guidelines But Must Explain Why

While a judge is not required to follow the new guidelines, if they deviate from them they must explicitly state in their findings the amount of maintenance or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines.

If you have questions or concerns regarding these changes or spousal maintenance generally, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.

It Could Happen to You: Understanding IDFPR Sanctions

sanctionsIn recent posts, we’ve discussed the investigations and disciplinary proceedings which the Illinois Department of Financial and Professional Regulation (IDFPR) conducts when a professional’s license comes under its scrutiny.

At various points in these processes, complaints may be dismissed or matters resolved without the imposition of any sanctions or other actions which could damage the licensee’s career or reputation. But in many cases, the IDFPR may conclude that disciplinary action is warranted. What that action may be, what it means, and how it may impact your life and livelihood can vary wildly. If you receive an IDFPR complaint or are facing administrative proceedings, it is crucial that you understand the potential consequences the IDFPR can impose if they find that your conduct merits it.

The following are some of the possible sanctions the IDFPR can levy on professional licensees:

  • Reprimand. While a reprimand will not limit your ability to work or practice, it may require monitoring and is an official public record of discipline.
  • Probation. If you are placed on probation, you will be able to continue working or practicing subject to specific conditions and limitations established by the Department. As with probation in the criminal justice system, a violation of any of the imposed terms will create further problems potentially involving further discipline. The probation term could be for a set period which will automatically expire providing all conditions were complied with or it could be for an indefinite time, requiring that the licensee petition the board to terminate the probation.
  • Suspension. If your license is suspended, you are prohibited from working in your profession during the suspension term. As with probation, the duration of suspension can be set or indefinite.
  • Summary or Temporary Suspension. If the Department determines that a licensee’s continuation in practice poses an imminent danger to the public, it can take immediate action by summarily or temporarily suspending a license. The license remains suspended pending a hearing on the case
  • Revocation. If the Department revokes your license, you cannot work or practice in your chosen profession until further notice. If no term is stated, you must wait a minimum of three years before you can file a Petition for Restoration.
  • Refusal to Renew. Licensees who are refused renewal are ineligible to renew their license and are prohibited from practice after the expiration of the date of their license, though they may file a Petition for Restoration.
  • Fines. A monetary penalty can be levied alone or in conjunction with any of the foregoing sanctions.

If the Department is seeking any of these sanctions against you or offers to resolve your matter through a consent order in which you agree to the imposition of a specific penalty, it is imperative that you consult with an experienced Chicago professional license defense attorney if you haven’t done so already. You need to fully understand the implications of any possible sanctions so you can make an informed decision about how to proceed. Your future is at stake; it is no time to go it alone.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Your Career in the Crosshairs: The Perils of IDFPR Disciplinary Proceedings

disciplineAllegations of professional misconduct made to the Illinois Department of Financial and Professional Regulation (IDFPR) are a dime a dozen. Any disgruntled client, customer, or patient can claim that you wronged, harmed, or otherwise treated them in an unprofessional manner worthy of investigation and punishment.

But these claims, as well as allegations of wrongdoing submitted to IDFPR by other licensees or law enforcement agencies, remain mere allegations until the IDFPR’s Investigations Unit determines that there is sufficient factual evidence to support the claim against you. If they reach that conclusion and submit the matter to the appropriate Department prosecutions unit for the initiation of disciplinary proceedings, those mere allegations against you explode into existential threats to your license and career. Understanding this threat, and retaining an experienced IDFPR defense attorney to defend you, are critical if you wish to continue making a living in your chosen profession.

Pre-Hearing Steps

We previously wrote about the IDFPR’s process of evaluating and investigating complaints prior to the start of an administrative proceeding which can conclude with disciplinary action, including the suspension or revocation of your professional license. Here’s what happens next:

  • Formal complaint. As opposed to a complaint submitted to the IDFPR about you, this is a complaint submitted to you by the IDFPR. It sets forth the factual and legal basis for seeking disciplinary action against you and advises you when you and your attorney must appear and file an answer to the charges. Failing to respond or appear can result in a default judgment which can, in turn, result in the loss of your license without you having an opportunity to defend yourself.
  • Informal conference. After you respond to the charges in the complaint, there is usually a meeting between yourself, your lawyer, and Department attorneys to informally negotiate and discuss your case to determine if a resolution can be reached before a formal hearing.
  • Preliminary hearing. If the parties cannot reach an early negotiated resolution, a preliminary hearing will be held at which time a date will be set for rulings by the Administrative Law Judge on any preliminary motions, such as those relating to discovery, evidence, and other pre-trial issues.

Unfair Discovery Process

During this time, both sides will be busy preparing their case for a formal hearing. This includes gathering the evidence and testimony that will support their respective positions, much as parties do in civil lawsuits. But unlike civil suits, where the judge gets to determine the parameters of discovery, the extent of allowable discovery in IDFPR proceedings is determined by the very people who are prosecuting the case.

Once the Department provides names of witnesses, including the name of any individual whose complaint may be at the heart of the proceedings, a respondent cannot take their depositions unless the Department’s attorney agrees – which rarely, if ever, happens. If the Department nixes a deposition request, that means the respondent will not be able to confront that witness, learn what his testimony will be, or attack the veracity of his testimony until the actual hearing. That is manifestly unfair and leaves a respondent and their attorney fighting with one arm tied behind their back.

The Formal Hearing

Ultimately, in lieu of a settlement, a formal hearing will be held during which each party makes opening and closing statements, the Department presents a case in chief, and you and your attorney will present your defense, much like in a trial.

The individual presiding over your case, the hearing officer, is usually an attorney charged with presiding over the proceedings fairly and objectively without favoritism or bias. The problem is the hearing officers are not independent. They are employed and paid by the IDFPR, just as the prosecuting attorneys are. This can make an already perilous process even more so.

Once the formal hearing concludes, the hearing officer or administrative law judge will present his or her findings, conclusions, and recommendations to the Director of Professional Regulation, who will determine the nature and extent of sanctions against you, or decide that no sanctions are warranted at all, if that is supported by the report they receive after the hearing. You will receive a copy of the report as well and have 20 days from the date the notice is mailed to file a motion for rehearing. Once the Director issues his order as to disciplinary action, you have 35 to file an appeal in circuit court.

If you receive a formal IDFPR complaint, the two most important things you can do are not panic and then call an experienced Chicago professional license defense attorney as soon as possible.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

The Road From IDFPR Complaint to IDFPR Disciplinary Action

complaintAs a lawyer, clients often will ask me whether they can sue this person or that company for a perceived wrong. My answer is always the same: anyone can sue anybody for anything. Of course, that doesn’t mean that they actually have a viable case or that filing a lawsuit is a smart move. It’s just that anyone who has the money for the filing and service fees can walk into a courthouse and file a lawsuit.

Similarly, anyone who feels that a licensed Illinois professional has acted improperly or done them wrong in some way can file a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR). But just because IDFPR receives a patient, client or customer complaint does not automatically translate into the institution of disciplinary proceedings. There are multiple stops on the road from complaint to action, any one of which can be the end of the matter.

Initial Evaluation

No matter whether an allegation of misconduct comes from a client, competitor, media reports, or other governmental bodies, IDFPR does not institute disciplinary proceedings without first conducting an investigation to determine whether the allegations appear to have merit.

When received by IDFPR, a client/patient/customer complaint will be forwarded to the Department’s Complaint Intake Unit. The claim is then sent to the investigative unit in charge of evaluating allegations for the specific profession at issue. Each licensed profession has its own investigative unit which is supposed to be staffed with individuals who have the knowledge and experience to evaluate the factual allegations in the complaint. They are also supposed to understand the applicable laws, regulations, and standards which determine whether a particular act or omission, if true, would be the basis for disciplinary action.

The lead worker on the case will review the information set forth in the complaint and decide whether to initiate an investigation or close the case. A case may be closed at this early juncture if the substance of the claim, even if true, would not support any disciplinary action. For example, if a patient filed an IDFPR complaint because a doctor did not shake their hand when walking not the exam room, that complaint will wind up in the IDFPR dustbin in short order.

Initial Investigation

However, if the lead worker decides that the allegations merit further inquiry, an IDFPR investigator will be assigned to look into the matter. The investigator can take any number of steps as part of their analysis, including:

  • Reviewing the complaint along with any documents or evidence submitted by the complainant
  • Pulling IDFPR licensure records and records of past investigations and disciplinary actions concerning the licensee.
  • Interviewing the complainant
  • Interviewing any known or potential witnesses
  • Interviewing the licensee who is the subject of the investigation
  • Issuing subpoenas for documents and other evidence

Referral for Prosecution

At the conclusion of their investigation, the assigned investigators will prepare and submit reports describing the steps they took, the evidence and testimony they gathered, and the conclusions they have reached. Upon receipt of the reports, the lead worker will review and decide whether the case should be closed or forwarded to the appropriate Department prosecutions unit for the initiation of disciplinary proceedings or other further action.

For some professions, such as physicians and dentists, IDFPR has case coordinators who are licensed members of those professions. These subject matter experts will review a case and all investigatory reports and decide whether a matter will proceed to the next level.

If you receive notice that an IDFPR complaint has been filed against you, the two most important things you can do are not panic and then call an experienced Chicago professional license defense attorney as soon as possible. You don’t want to wait until that complaint metastasizes into a formal prosecution before taking steps to protect yourself and your career.

Louis Fine: Chicago Professional License Defense Attorney

The moment IDFPR contacts you is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

It Doesn’t Take a Scalpel to Pierce Your Medical Practice’s “Corporate Veil”

pierceAs “Captain Obvious” would no doubt note: doctors get sued. Medical malpractice lawsuits are filed every day in which a patient alleges that a physician failed to adhere to the appropriate standard of care. But doctors get sued for other reasons and by folks other than those they treat. Medicine is a business as well as a profession, and like other businessmen and women, doctors can get sued by people or entities they do business with, including the government.

That is one of many reasons physicians form medical corporations, limited liability companies, or professional service corporations. These specialized entities can shield the personal assets of physicians who act as officers, directors, or shareholders when lawsuits by creditors or other liabilities confront their business. But that protection is not absolute, and doctors can find their personal assets in the crosshairs of a determined litigant if they fail to adhere to the requisite “standard of care” in managing their entity.

“Piercing the Corporate Veil”

“Piercing the corporate veil” is the term used to describe imposing personal liability on a company’s owner(s) for a corporate obligation. Plaintiffs often attempt to pierce the corporate veil when the company they are suing is insolvent or would be otherwise unable or unlikely to pay any judgment entered against it.

Veil-piercing allows a court to “impose liability on an individual or entity that uses a corporation merely as an instrumentality to conduct that individual’s or entity’s business.” Fontana v. TLD Builders, Inc., 362 Ill. App. 3d 491, 500 (2005)

Illinois courts use a two-prong test to determine whether to pierce the corporate veil:

  1. there must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and
  2. circumstances must exist such that adherence to the fiction of a separate corporate existence would sanction a fraud, promote injustice, or promote inequitable consequences.”

In determining whether the “unity of interest and ownership” prong of the test is met for a medical business entity, a court will consider many factors, including:

  • inadequate capitalization;
  • insolvency;
  • failure to follow corporate formalities
  • commingling of funds;
  • diversion of assets from the entity by or to a member to the detriment of creditors;
  • failure to maintain arm’s-length relationships among related entities; and
  • whether, in fact, the entity is a mere facade for the operation of the dominant members.

Medical Entities Do Not Shield Doctors from Malpractice Liability

While a properly organized and managed entity can protect a doctor’s personal assets from creditors and business-related claims, it affords no such protection against medical malpractice claims. The Illinois Medical Corporation Act specifically provides that it “does not alter any law applicable to the relationship between a physician furnishing medical service and a person receiving such service, including liability arising out of such service.”

Similarly, the Illinois Professional Service Corporation Act states that physician officers, shareholders, or directors “remain personally and fully liable and accountable for any negligent or wrongful acts or misconduct committed by him, or by any ancillary personnel or person under his direct supervision and control, while rendering professional services on behalf of the corporation to the person for whom such professional services were being rendered.”

If you are a physician who has an interest in an Illinois medical practice, it is critical that you understand that the protections afforded to your assets aren’t set in stone just because you formed a corporate entity. I work closely with physicians and their entities to implement programs and protocols designed to minimize risks, including the risk of personal liability for their business obligations. If you need assistance with your medical practice’s legal obligations, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

Medical Corporations are Licensees Too, My Friend

corpEven though individual licensed physicians, not a corporate entity, are the ones doing the diagnosing, treating, and healing, the entity still must be licensed by the IDFPR. There are three main types of medical entities that Illinois physicians can form: a medical corporation, a limited liability company, and a professional corporation. In a medical corporation or professional corporation that provides medical services, only licensed physicians may be shareholders, directors and officers.

In Illinois, physicians may also practice medicine through a limited liability company so long as the managers and each member are licensed to practice medicine under the Illinois Medical Practice Act or a member or manager is a registered Illinois professional corporation, medical corporation or appropriately structured and licensed limited liability company.

Medical Corporations

Under the Illinois Medical Corporation Act, no corporation shall open, operate or maintain an establishment involving the delivery of medical services in the state without a license issued by IDFPR. All medical corporation licenses expire on December 31 of each year regardless of the date on which IDFPR issued the license and must be renewed every year.

It is important to note that IDFPR can revoke or suspend the corporation’s license for numerous reasons, including:

  • the revocation or suspension of the license to practice medicine of any officer, director, shareholder or employee not promptly removed or discharged by the corporation;
  • unethical professional conduct on the part of any officer, director, shareholder or employee not promptly removed or discharged by the corporation;
  • the death of the last remaining shareholder; or
  • upon finding that the holder of a certificate has failed to comply with the provisions of this Act or the regulations prescribed by the Department.

Medical corporation owners therefore need to be cognizant about how any individual physician’s disciplinary issues may impact the corporation’s license status.

Limited Liability Companies

Licensed Illinois physicians can also form a limited liability corporation (LLC) to provide professional services, and the LLC must be licensed by IDFPR  just like a medical corporation.

While the owners of a medical corporation can be licensed for different medical professions, all members and managers of LLCs providing any of the following professional services must be licensed for the same profession:

  • Clinical psychology
  • Dentistry
  • Marriage and family therapy
  • Medicine

Professional Service Corporations

Licensed Illinois professionals who perform the same or “related professional services” may form a professional service corporation. “Related professional services” include a combination of personal services by physicians, podiatric physicians, dentists, and optometrists licensed in Illinois. Only licensed individuals engaged in the same or related professions may be shareholders, directors, or officers in the corporation. All Illinois professional service corporations must be licensed by IDFPR.

Entities which lose their license cannot continue to legal offer medical services. If they continue to do so, it could cause problems for the individual physician/owners. Not only may they be subject to disciplinary action, but the failure to follow the law could theoretically contribute to a physician’s personal exposure for the entity’s obligations or liabilities if a plaintiff attempts to “pierce the corporate veil.”

In our next post, we will discuss how issues other than licensing can cause headaches for medical entity owners who fail to comply with the formalities and requirements that apply to the operation of their entities.

Louis Fine: Chicago Medical License Defense Attorney

Whether it is your personal license or your entity’s license that is in IDFPR’s crosshairs, please contact me.  I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Keeping Quiet: “Pleading the Fifth” In Professional License Proceedings

5th amendOh, to be Michael Cohen right now. Donald Trump’s long-time consigliere, “fixer,” and soon-to-be hostile witness is under criminal investigation and will likely be charged soon with a cornucopia of federal crimes which could send him up the river for decades. Cohen is also a defendant in the civil suit brought by Stormy Daniels in which she is seeking to void the hush money agreement about her affair with Trump that Cohen so kindly facilitated. Last week, Cohen told the court hearing the Stormy case that he was invoking his rights against self-incrimination under the Fifth Amendment to the U.S. Constitution and reusing to testify.

Cohen is “pleading the Fifth” in the Stormy case because he fears, rightly, that anything he says in that case could be used against him in the criminal investigation he is currently enmeshed in. Similarly, many physicians or other professionals licensed by the Illinois Department of Professional Regulation (IDFPR) can find themselves under investigation or facing disciplinary action by the Department for acts which could also be the basis for criminal prosecution. For example, a doctor who improperly prescribes medication could face the loss or suspension of his or her license and also be charged with a crime for such conduct.

In such situations, can or should the respondent in an IDFPR proceeding exercise their rights under the Fifth Amendment when their answers could result in criminal liability?

Fifth Amendment Applies in Disciplinary Proceedings

The Fifth Amendment provides that “No person shall be… compelled in any criminal case to be a witness against himself…” This privilege has also been incorporated in the Illinois Constitution. The privilege essentially means that no person, without proper immunity, can be required to implicate himself in a crime.

Although by its literal terms applicable only in criminal proceedings, the Fifth Amendment privilege against self-incrimination has long been held to be properly asserted by parties in civil proceedings, as Mr. Cohen recently did.

The logic behind applying the privilege in civil cases also applies to administrative actions such as IDFPR investigations and disciplinary proceedings, and can be asserted not only at a hearing, but during the investigation and discovery stage as well.  As the U.S. Supreme Court has stated:

“A witness’ privilege against self-incrimination `not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'”

As such, you can “plead the Fifth” before the IDFPR. The question of whether you should exercise your right against self-incrimination is a more complicated question.

A Tough Decision

Anybody faced with this choice faces a variation of the same dilemma. As the Supreme Court put it: a party must weigh “the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts[.]” Accordingly, a “party who asserts the privilege against self-incrimination must bear the consequence of lack of evidence.”

What makes the choice even trickier is that, unlike in criminal proceedings, IDFPR hearing officers can draw an adverse inference from the professional’s refusal to testify and hold it against the professional so long as there is other sufficient evidence to support their findings.

The gravity and implications of exercising your Fifth Amendment rights in an IDFPR proceeding require careful thought and a consideration of all of the possible consequences. It is a decision that will be based on the specific circumstances of your disciplinary matter as well as the possible criminal repercussions of the acts under investigation. It is a decision that should only be made in consultation with your lawyer.

Louis Fine: Chicago Professional License Defense Attorney

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will get you back to you clients and your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Attorney Louis Fine is available to speak on all Illinois professional licensing issues, including the unique challenges and potential pitfalls faced by physicians and other health care professionals. If you are interested in having Louis speak to members of your organization, company, or practice, please email him at louis@lrflaw.com

Loosening of Licensing Laws Looking a Lot Likelier

regsThe current administration is pushing radical deregulation across almost every aspect of the nation’s economic and public life. Most of these efforts are not designed with the public good in mind and are instead focused on advancing the interests of those who would financially benefit from the elimination of regulations such as those which protect the environment, enhance workplace safety, or ensure opportunity and protections for the disabled or other vulnerable groups.

However, even a stopped clock is right twice a day, and one regulatory framework is rightfully being reexamined to see whether it is in fact doing more harm than good. Specifically, the push to reevaluate and reform state professional and occupational licensing regimes keeps gaining steam.

Federal Dollars for State Licensing Reform

Premised on concerns that too many jobs are subject to too many licensing requirements, and that these regulations are creating financial and practical barriers to people seeking to enter scores of occupations, an increasing number of voices are calling on states to make dramatic changes to their laws. This now includes the U.S. Department of Labor (DOL). Under a recently announced grant program, the federal government is offering states millions of dollars to review, eliminate and reform their licensing requirements.

Under the State Occupational Licensing Review and Reform grant program, individual states, including Illinois, can apply for up to $450,000 in funding to “review and streamline occupational licensing requirements in state-identified occupations and to promote portability of state licenses to and from other states.” Illinois has already joined a consortium of 10 other states who have been doing just that in conjunction with an existing DOL effort.

Consumer Protection v. Economic Opportunity

Why is this a necessary and even positive development? After all, the underlying premise of occupational and professional licensing requirements is to protect consumers and ensure that those holding themselves out as skilled or competent in providing services are in fact skilled and competent.

Protecting the public from charlatans and hacks is unquestionably a public good. Few people will argue that doctors, lawyers, accountants, or dentists should not be regulated to ensure that they meet certain basic requirements of training, skill, and ethics.

But reform advocates argue that there are way too many occupations which are subject to licensing requirements. For example, the Illinois Department of Financial and Professional Regulation (IDFPR) is responsible for reviewing license applications in 235 separate categories covered by 61 different professional license acts. It licenses and regulates over 1 million professionals and firms throughout Illinois.

Economists and others have argued that professional licensing requirements for many occupations present unnecessary barriers that keep many people from entering those jobs while not significantly adding to consumer protection.

In announcing the grant, Secretary of Labor Alexander Acosta said:

“Excessive licensing raises the cost of entry, often prohibitively, for many careers, barring many Americans from good, family-sustaining jobs. In 1950, only 1 in 20 jobs required an occupational license. Today, more than 1 in 4 require a license to work… If licenses are unnecessary, eliminate them. If they are necessary for health and safety, then streamline them and work with other states for reciprocity.”

Indeed, a 2015 study by the Brookings Institution found there were “far more cases” in which licensing reduced employment than ones where it improved the quality and safety of services. The restrictions have resulted in 2.8 million fewer jobs nationally and raised consumer costs by $203 billion annually, the study found.

When combined with the unfairness of the professional license disciplinary process, the overzealous exclusion of qualified individuals from their chosen occupations, especially those occupations which do not implicate health, safety, or financial concerns, is worthy of serious reconsideration.  .

Louis Fine: Chicago Professional License Defense Attorney

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.

Professionals Charged With Crimes Need to Think Long and Hard Before Entering a Plea Bargain

pleaIf you are facing criminal charges, you have a lot to worry about. Depending on the nature of the charges, you could be facing thousands of dollars in fines, months or even years behind bars, and a stain on your reputation that can follow you around for decades. If you are also a licensed professional, the outcome of your criminal case could have a profound impact on your ability to continue earning a living in your chosen profession.

In a perfect world, you would be able to beat the charges, put the ordeal behind you, and return to your life with minimal disruption. Many times, however, the prospect of severe criminal consequences upon conviction – and the substantial attorney’s fees you will incur win or lose — can make a plea bargain with prosecutors an attractive proposition.

If you can avoid being separated from your family by pleading guilty to a lesser offense or by agreeing to other terms proposed by prosecutors, you may understandably jump at the chance. That’s one reason that more than 90 percent of state and federal criminal convictions are the result of guilty pleas.

Plea Bargain = Conviction = Disciplinary Action

But you need to take a long, hard look at the terms of any such offer and the implications it can have on your career before you leap into a plea bargain. While no jury or judge has found you guilty of a crime, you are effectively declaring yourself guilty when you enter into a plea bargain. In the eyes of most Illinois professional licensing laws and the Illinois Department of Financial and Professional Regulation (IDFPR), guilty is guilty, and your license may be at immediate risk for suspension or revocation once you sign on the prosecutor’s dotted line.

Almost every Illinois licensing statute makes certain criminal convictions a basis for disciplinary action. The Illinois Physical Therapy Act provides a typical example of how criminal convictions are treated under state licensing acts. It states that a therapist’s license can be denied, revoked, suspended, or subject to other disciplinary action for:

Conviction of any crime under the laws of the United States or any state or territory thereof which is a felony or which is a misdemeanor, an essential element of which is dishonesty, or of any crime which is directly related to the practice of the profession; conviction, as used in this paragraph, shall include a finding or verdict of guilty, an admission of guilt or a plea of nolo contendere;

Note that the statute makes no distinction between a guilty verdict and admission of guilt. Also note that the language, which is substantially similar to that in other licensing acts, only involves convictions for crimes involving “dishonesty” or those “directly related to the practice of the profession.” But these categories can encompass a wide range of criminal offenses, from fraud, shoplifting, and embezzlement to drug possession or driving under the influence, depending on the profession.

Relinquishing License as Part of Plea Bargain

In some cases, prosecutors may condition a plea bargain on the defendant voluntarily relinquishing their license, often permanently. While some licensing acts allow for reinstatement after a period of time has passed after a conviction for certain offenses, a voluntary agreement to give up a license can take away that opportunity.

If you are being prosecuted for a crime and are offered a plea agreement which involves surrendering your license, it is critical that you consult with both your criminal defense attorney as well as a professional licensing lawyer to discuss the implications of such an agreement. After all, whether or not you serve any time, you will need to make a living when your criminal justice ordeal is over.

Louis Fine: Chicago Professional License Defense Attorney

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.