Will a Chapter 7 or 13 Bankruptcy Close The Book On Your Professional License?

Bankruptcy happens. It’s not a crime, it’s not a moral failure, it’s not a character flaw. In times of economic upheaval, in particular, even the most hard-working, intelligent, and responsible professionals, from physicians to accountants to hairstylists, can find that their debts have simply become untenable. Filing for bankruptcy can itself be a difficult experience, emotionally, financially, and practically. But if you’re also worried that you might lose your professional license, and thus your ability to support yourself and your family, the anxiety is only compounded.

Fortunately, in most cases, filing a Chapter 7 or 13 bankruptcy proceeding without more will not result in the loss of a professional license.

The Bankruptcy Code Is Designed To Provide Protection, Not Persecution

The law provides for bankruptcy proceedings to give an overwhelmed debtor a second chance and give creditors a chance at recovering at least some of the amounts owed to them. Bankruptcy proceedings may be painful, but they are not supposed to be a persecution.

That is why the Bankruptcy Code prohibits private and public employers from using a bankruptcy filing as the sole reason to terminate an employee or otherwise take adverse action against them.

Specifically, Section 525(b) of the Bankruptcy Code provides that “No private employer may terminate the employment of, or discriminate with respect to employment against” an employee “solely because” the employee:   

  • is or has been a debtor or bankrupt under the Bankruptcy Act;
  • has been insolvent before the commencement of a bankruptcy proceeding or during the case but before the grant or denial of a discharge; or
  • has not paid a debt that is dischargeable or that was discharged under the Bankruptcy Act.

Note the “solely because” language. If other reasons exist for terminating an employee that may tangentially relate to the bankruptcy, such as dishonesty, fraud, or other malfeasance, the Bankruptcy Code won’t necessarily save an employee’s job.

Professional Licenses Are Protected Assets In Bankruptcy

A professional license is a valuable asset, one obtained through a substantial investment of time, effort, and money. In a bankruptcy proceeding under either Chapter 7 or 13, the debtor’s assets become a crucial part of resolving the debts and obligations that led to the filing of bankruptcy in the first place.

But professional licenses are only of value to the licensee; they can’t be transferred or used by a debtor to satisfy their debt. The real threat that bankruptcy poses to a professional license is the risk that a governmental licensing body, like the Illinois Department of Financial and Professional Regulation (IDFPR), will use the proceedings as a basis for denying, suspending, or revoking a license.

But since bankruptcy, as noted, is not designed for punishment, the Bankruptcy Code explicitly protects professional licenses and the ability of licensees to continue to earn a living.

Specifically, Bankruptcy Code Section 525(a) states:

[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license… against a person that is or has been a… debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.

Again, the “solely because” language is key. A professional licensee’s bankruptcy, depending on the circumstances, may implicate other issues that could lead to or support disciplinary actions. But the bankruptcy itself, without more, should not threaten a debtor’s professional license.

Louis Fine: Chicago Professional License Defense Attorney

If you are a licensed Illinois professional and have concerns about how a bankruptcy might impact your license and career, I welcome the opportunity to meet with you.

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.

Universal Professional License Reciprocity: New Arizona Law May Be the Start of Something Big

Qualifying for, obtaining, and maintaining a professional license can be a time-consuming, often frustrating, and burdensome endeavor – even if everything goes as smoothly as possible. Going through the process once is tough enough; the thought of going through it again simply because you want to move and practice your profession in a new state can be enough to make you stay put and lose out on lucrative opportunities.

That is the dilemma faced by contractors, dentists, cosmetologists, and scores of other professionals who must meet a whole new set of licensing requirements -such as education and testing – when they want to work in another state. While some states do have “reciprocity” for a very narrow group of professions and will grant a license based on an out-of-state license, not one state had universal license recognition – until now.

Arizona Passes Nation’s First Universal License Recognition Law

Recently, Arizona became the first state in the nation to pass a law allowing almost all professionals who have valid occupational licenses in other states to obtain a license to work in Arizona without having to meet the state’s education and testing requirements.

Under the new law, Arizona’s licensing boards will recognize out-of-state occupational licenses for people who have been licensed in their profession for at least one year, are in good standing in all states where they are licensed, pay applicable Arizona fees, and meet all residency and background check requirements. Licensed professionals will not be required to duplicate training and other requirements that often needlessly delay or prevent them from starting to work in their new home.

Limited Reciprocity in Illinois

While Arizona is the first state to bring reciprocity and license recognition to broad swaths of professions and occupations, Illinois and several other states do offer reciprocity for specific licenses. The most prominent of these is for real estate brokers. Individuals who hold an active broker’s license in any of the following states can obtain an Illinois license without having to meet the education and testing obligations that other applicants do:

  • Colorado
  • Connecticut
  • Florida
  • Georgia
  • Indiana
  • Iowa
  • Nebraska
  • Wisconsin

Individuals in a handful of other professions who hold a valid license in another state, including architects and registered nurses, can obtain an Illinois license under a process called “licensure by endorsement” if the licensure process in that other state was substantially equivalent to the process in Illinois at the time of licensure.

Will Other States Follow Suit?

Arizona’s bold move is a boon for any professional wanting to pick up and move to the Grand Canyon State. But what about the rest of the country? To date, no other state has advanced a bill along the lines of Arizona’s. But there is increasing business and political pressure to reduce licensing burdens generally so that qualified professionals can work without being deterred by costs, bureaucracy, and other hurdles. Universal license recognition certainly fits into that philosophy. I expect that other states will take a cautious approach initially, waiting to see how Arizona’s law works in practice before jumping on the universal licensing bandwagon. Nevertheless, this law is a great start.

Louis Fine: Chicago Professional License Defense Attorney

If you have questions or concerns about your professional license, or you learn that you are the subject of an IDFPR investigation or complain, please contact me immediately. 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 can 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 your 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.

Spring Ahead With These Important Professional Licensing Updates and Developments

Happy Springtime. In the spirit of the season, we’ve put together a potpourri of recent stories, issues, and developments in the world of Illinois professional licensing. As a Chicago professional license defense law firm, we stay abreast of all matters involving the Illinois Department of Financial and Professional Regulation (IDFPR) and that impact licensed professionals throughout the state.

Here is the latest news on the Illinois professional licensing front:

Citizenship Not Required For Professional Licenses Under New Bill

A bill recently introduced in the Illinois Senate would allow otherwise qualified applicants for professional licenses to obtain a license regardless of their citizenship or immigration status.

Senate Bill 1166, which passed the full Senate on March 21 and is now pending in the Illinois House of Representatives, provides that, except as otherwise provided by law, no department shall deny an occupational or professional license based solely on the applicant’s citizenship status or immigration status.

The bill’s author, Assistant Majority Leader Iris Martinez (D-Chicago), explained said that she drafted the legislation because, “If anyone in our state wants to contribute by working hard and paying taxes, they should not be denied because of where they were born.”

Extended IDFPR Delays Risks Exodus of Physician Assistants From Illinois

There is always a bit of a wait time between the date IDFPR receives a professional license application and the date it issues one. But every day that passes during that time is a day that the applicant can’t make a living and earn a paycheck working in their chosen profession.

For physician assistants (PAs), who are in one of the fastest-growing and most in-demand professions in the country, the problem with IDFPR delays is particularly acute. PAs are having to sit on their hands for months before they can begin to do their jobs helping patients.

The current processing time for Illinois Physician Assistant applications is 8 to 10 weeks, according to IDFPR, though some applicants report having to wait well-over three months before receiving their license. By way of contrast, the average wait time in neighboring Wisconsin is all of eight days.

The Illinois Academy of Physician Assistants (IAPA) places the blame on understaffing at IDFPR and its lack of “sufficient funding to tackle the backlog of applications.”

A report earlier this year by NBC 5 Chicago indicated that the difference in wait times is making a difference in where newly-minted PAs are choosing to practice, potentially leaving a shortage of PAs in Illinois at the same time their services are increasingly being utilized by more patients.

Hairstylists Now Need Domestic Violence Training

Hairstylists often become unofficial therapists and sounding boards for their clients. Now, they will officially need training so that they can spot signs of domestic violence or sexual assault and help those clients who are experiencing such trauma.

Under an Illinois law passed in 2016, all 84,000 beauty professionals in the state have until this September to complete the in-person or online classes. Cosmetologists, cosmetology teachers, estheticians, esthetic teachers, hair braiders, hair braiding teachers, nail technicians, and nail technology teachers will not be able to renew their professional licenses unless they do so.

The classes are one-hour and only one session is required, There are 20 approved sponsors across the state providing the needed training, including several locations in Chicago. IDFPR has a full list of all available class locations.

Louis Fine: Chicago Professional License Defense Attorney

If you have questions or concerns about your professional license, or you learn that you are the subject of an IDFPR investigation or complain, please contact me immediately. 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 can 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 your 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.

“It Ain’t Over `Til It’s Over”: Appeals of IDFPR Disciplinary Decisions

You, your professional license, your reputation, and your career have been put through the wringer. You fought the good fight before the Illinois Department of Financial and Professional Regulation (IDFPR), but after a formal disciplinary hearing, the Department concluded that you should be sanctioned for your alleged acts or omissions. Perhaps the Director decided to suspend or revoke your license or imposed other penalties which could impact your ability to earn a living. Your worries about your future and righteous indignation at the unfairness of the decision may lead to you to ask whether there is anything you can do to change this outcome.

What Can Be Appealed?

IDFPR, like many Illinois administrative agencies, uses Administrative Law Judges (ALJs) to make decisions that affect the legal rights, duties or privileges of individuals over whom they have jurisdiction. Once a formal disciplinary proceeding concludes, the ALJ presents his or her findings, conclusions, and recommendations to the Director of Professional Regulation. Based on these findings, the Director will make the final decision as to sanctions.

You have the right to appeal – or more accurately, seek “administrative review” of – the Director’s final order in the circuit court of the county in which you reside.

You can, however, lose any right to seek relief from the decision unless you file your petition for administrative review within 35 days after the decision was mailed to you. This deadline is strict and unwavering, and a judge will dismiss your appeal if you miss it.

Administrative Review is Not a “Do-Over”

As with appeals of decisions made by a trial court, many people are under the mistaken impression that an appeal of an administrative decision is essentially a second bite at the apple; a “do-over.” They may think that they’ll have the opportunity to reargue their case and present their evidence and testimony in front of a judge who they hope will make the “right” decision this time.

This is simply not the case. “It is not a court’s function on administrative review to reweigh evidence or to make an independent determination of the facts.” Cook County Republican Party v. Illinois State Board of Elections,  232 Ill. 2d 231, 244 (2009). In fact, Illinois’ Administrative Review Law specifically says that: “No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court.”

Instead, the court will presume that the findings and conclusions of the ALJ as to questions of fact are true and correct.

Questions of Law

The circuit court will only review a decision to determine whether the correct rules, procedures, and law were applied during the course of the proceeding and when the ALJ made his or her determination. These are “questions of law,” and the reviewing court will only reverse the Department’s decision if it was “clearly erroneous” or the ALJ “abused their discretion” regarding the conduct of the hearing and the introduction of evidence, and that abuse caused “demonstrable prejudice to the party.”

Simply put, you won’t be able to challenge an ALJ’s decision to believe the testimony one witness and not believe another, but you could challenge the ALJ’s decision to allow such testimony at all if it should have been deemed inadmissible under the applicable rules of evidence.

If You Were Sanctioned by IDFPR, Speak With an Experienced Chicago Professional License Defense Attorney Immediately

As noted, whether you have a viable basis for administrative review of an IDFPR decision imposing sanctions against you will depend on the facts and circumstances of your case. But you have an extremely limited time to decide whether to pursue an appeal, so it is critical to contact an experienced professional license defense lawyer as soon as possible after you receive a final decision.

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.

Top 5 Tips For Avoiding Professional License Complaints

You can’t please everyone. No matter your profession or career, if you have clients, customers, or patients, one of them at some point is going to be unhappy with you and your services. Whether their displeasure is justified or not, whether or not you’ve done everything right and are without fault for anything, whether they are straight-up making up facts and allegations, that disgruntled person can become a major thorn in your side.

If they file a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR), you will have to deal with it. At minimum, it will make you angry, frustrated, or indignant and you will need to spend your valuable time responding to the claims against you. If you fail to address the complaint effectively or if the Department finds merit in the allegations, the potential damage to your reputation and risk to your livelihood become exponentially greater.

In a perfect world, your professionalism, ethics, and competence would prevent any license complaints against you. But as we see every day, our world is anything but perfect. That said, there are things you can do to reduce the likelihood of complaints and position yourself for a positive outcome if a complaint is filed.

For doctors, accountants, appraisers, hairstylists, or any of the scores of professions regulated by IDFPR, here are five tips for avoiding professional license complaints:

  1. Know your professional obligations. Specific laws, rules, and regulations govern your profession. Baseline standards of care, continuing education requirements, and other obligations must be complied with for you to stay on the right side of regulators and These requirements are numerous and can change without notice. Make sure that you keep up with your obligations and audit yourself every year to confirm that you are in compliance.
  2. Educate your staff. If you employ others in your practice or profession, you are responsible for everything they do in the course of their employment. Their misconduct, malfeasance, or negligence can directly threaten your license. You need to supervise, train, and educate your staff to ensure that they understand their professional obligations and are following all applicable rules. Put in place policies and protocols that can minimize deviations and quickly correct them if they occur.
  3. To sue or not to sue? You have every right to get paid for services you provide, and when a client or customer skips out on a bill, you have every right to pursue them in a collection lawsuit. While some folks may fail to pay because they are simply avoiding their obligations, others may claim that the services you provided were substandard, improper, or not what you promised. If that’s the case, you’ll want to try to resolve these disputes before filing suit. Even if you can’t do so, you’ll be well-positioned if they respond with a license complaint, as sued clients often do.
  4. Document everything. Whether in a civil lawsuit or an IDFPR disciplinary proceeding, the more documentation and evidence you have to support your position, the better your chances of a positive outcome. Be sure to document any problems that occur and the steps that you took to correct them. If any staff was involved, have them document their version of events as well.
  5. Communicate. What we have here with so many professional license complaints is a failure to communicate. Inadequate client communication can lead to misunderstandings or feelings of neglect and insufficient care, increasing client dissatisfaction and the likelihood of claims. Be accessible and responsive, and make sure your staff is too.

As noted, you will likely face a professional license complaint at some point in your career, and when you do so, the most important tip is to contact an experienced Chicago professional license defense attorney as soon as possible. Seasoned and knowledgeable counsel can be the key to resolving IDFPR matters early and cost-effectively so you can focus on your career instead of complaints.

Louis Fine: Chicago Professional License Defense Attorney

The moment IDFPR contacts you or you learn that you are under investigation is the moment that you should contact me. 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 Could Happen to You: Understanding IDFPR Sanctions

In 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

Allegations 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.

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

Oh, 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

The 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

If 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.