Between a Rock and a Hard Place - When Criminal Law Overlaps Administrative LawJustin Hein
Presentation by Steven L. Simas, Justin D. Hein, and Jon-Paul Valcarenghi on the intersection of Administrative Law and Criminal Law. Before the Sacramento County Bar Association, Administrative Law Section.
How Administrative Law is Affecting Your Case - Whether You Know it or Not!Justin Hein
Administrative law is affecting licensing cases in ways attorneys may not be aware. Steven Simas discussed three key areas:
1. Administrative process and hearing overview - He outlined the governing laws and process from investigation through post-hearing options like appeals.
2. Substantially related to the profession - Convictions can be grounds for discipline if substantially related, even if not from licensed work. Agencies must define this standard.
3. Common procedural complexities - These include right to counsel in administrative hearings, handling concurrent criminal cases, exhaustion of remedies, and ensuring a fair hearing process. Understanding administrative law intricacies is crucial for case advice and negotiations.
Disclosures by whistleblowers under the qui tam provisions of the False Claims Act (FCA) have enabled the federal government to recover more than $40 billion. But with strong protections against retaliation, whistleblowers would be reluctant to come forward. This course, presented by Jason Zuckerman, Principal at Zuckerman Law, provides an overview of whistleblower protections for employees of government contractors and grantees, focusing on the whistleblower protection provisions of the FCA and National Defense Authorization Act (NDAA). The course will also offer practical tips and insights for practitioners on how to evaluate potential whistleblower claims and overlapping remedies to maximize damages. In addition, the course will address the challenging issues that arise when a whistleblower simultaneously prosecutes both retaliation and rewards claims.
The document discusses the ethical and liability risks for lawyers who do not use computer-assisted legal research (CALR) technology such as Westlaw and LexisNexis. While there is no direct rule requiring the use of CALR, the standard of competent legal practice implies that lawyers must use tools that allow for thorough, efficient research. Failure to research issues adequately could lead to ethics violations, malpractice claims, or sanctions. As CALR has become ubiquitous and courts increasingly rely on it, not using these tools risks a lawyer failing to meet the standard of competent legal representation according to evolving practices.
This document provides guidance for new judges on ethics, general rules, and protection orders. It discusses the Code of Judicial Conduct which establishes standards for ethical conduct. Key points include avoiding ex parte communications, recusing when impartiality is in question, and not using one's position for personal gain. It also outlines general rules in Washington's court rules that judges must know, such as those regarding sealing documents and fee waivers. When handling protection orders, judges are advised to carefully consider requests to exclude a party from their home and properly serve and format exclusion orders. The document concludes with best practices for dealing with self-represented parties in hearings and trials in a fair and impartial manner.
Final Project Intro To Legal Systems becoming a paralegal in North CarolinaChris Harden
A paralegal is a person who assists lawyers by performing substantive legal work under a lawyer's supervision. This allows lawyers to delegate tasks and lower legal costs for clients. To be successful, paralegals must have strong critical thinking, research, writing, and communication skills as well as knowledge of legal procedures. They conduct tasks like drafting documents, assisting with cases, and communicating with clients. However, paralegals cannot practice law independently or give legal advice. Ongoing education and certification help paralegals advance their careers and ensure quality work. Most paralegals work in private law firms to help generate revenue through their billable hours.
Between a Rock and a Hard Place - When Criminal Law Overlaps Administrative LawJustin Hein
Presentation by Steven L. Simas, Justin D. Hein, and Jon-Paul Valcarenghi on the intersection of Administrative Law and Criminal Law. Before the Sacramento County Bar Association, Administrative Law Section.
How Administrative Law is Affecting Your Case - Whether You Know it or Not!Justin Hein
Administrative law is affecting licensing cases in ways attorneys may not be aware. Steven Simas discussed three key areas:
1. Administrative process and hearing overview - He outlined the governing laws and process from investigation through post-hearing options like appeals.
2. Substantially related to the profession - Convictions can be grounds for discipline if substantially related, even if not from licensed work. Agencies must define this standard.
3. Common procedural complexities - These include right to counsel in administrative hearings, handling concurrent criminal cases, exhaustion of remedies, and ensuring a fair hearing process. Understanding administrative law intricacies is crucial for case advice and negotiations.
Disclosures by whistleblowers under the qui tam provisions of the False Claims Act (FCA) have enabled the federal government to recover more than $40 billion. But with strong protections against retaliation, whistleblowers would be reluctant to come forward. This course, presented by Jason Zuckerman, Principal at Zuckerman Law, provides an overview of whistleblower protections for employees of government contractors and grantees, focusing on the whistleblower protection provisions of the FCA and National Defense Authorization Act (NDAA). The course will also offer practical tips and insights for practitioners on how to evaluate potential whistleblower claims and overlapping remedies to maximize damages. In addition, the course will address the challenging issues that arise when a whistleblower simultaneously prosecutes both retaliation and rewards claims.
The document discusses the ethical and liability risks for lawyers who do not use computer-assisted legal research (CALR) technology such as Westlaw and LexisNexis. While there is no direct rule requiring the use of CALR, the standard of competent legal practice implies that lawyers must use tools that allow for thorough, efficient research. Failure to research issues adequately could lead to ethics violations, malpractice claims, or sanctions. As CALR has become ubiquitous and courts increasingly rely on it, not using these tools risks a lawyer failing to meet the standard of competent legal representation according to evolving practices.
This document provides guidance for new judges on ethics, general rules, and protection orders. It discusses the Code of Judicial Conduct which establishes standards for ethical conduct. Key points include avoiding ex parte communications, recusing when impartiality is in question, and not using one's position for personal gain. It also outlines general rules in Washington's court rules that judges must know, such as those regarding sealing documents and fee waivers. When handling protection orders, judges are advised to carefully consider requests to exclude a party from their home and properly serve and format exclusion orders. The document concludes with best practices for dealing with self-represented parties in hearings and trials in a fair and impartial manner.
Final Project Intro To Legal Systems becoming a paralegal in North CarolinaChris Harden
A paralegal is a person who assists lawyers by performing substantive legal work under a lawyer's supervision. This allows lawyers to delegate tasks and lower legal costs for clients. To be successful, paralegals must have strong critical thinking, research, writing, and communication skills as well as knowledge of legal procedures. They conduct tasks like drafting documents, assisting with cases, and communicating with clients. However, paralegals cannot practice law independently or give legal advice. Ongoing education and certification help paralegals advance their careers and ensure quality work. Most paralegals work in private law firms to help generate revenue through their billable hours.
Agency discretion refers to the power of administrative agencies to make choices among different policy options when applying laws to individual cases. Some level of discretion is necessary because laws may not address every situation. Safeguards against abuse of discretion include constitutional protections, statutes that define an agency's mission, and political and judicial oversight. Courts generally uphold an agency's discretion but will intervene if the agency's actions are deemed arbitrary, capricious or an abuse of power based on the circumstances of the case.
The Dodd-Frank Act whistleblower provisions reward whistle blowing and protect whistleblowers against retaliation. The Dodd-Frank Act creates a robust retaliation action for employees in the financial services industry. The scope of coverage is quite broad in that Section 1057 applies to organizations that extend credit or service or broker loans; provide real estate settlement services or perform property appraisals; provide financial advisory services to consumers relating to proprietary financial products, including credit counseling; or collect, analyze, maintain, or provide consumer report information or other account information in connection with any decision regarding the offering or provision of a consumer financial product or service.
Under the Dodd-Frank Act, an individual who provides original information to the SEC or Commodity Futures Trading Commission (“CFTC”) which results in monetary sanctions exceeding $1 million shall be paid an award of 10 to 30 percent of the amount recouped. See Dodd-Frank Act § 748 (applying to CFTC whistleblowers) and § 922(a) (applying to SEC whistleblowers). The amount of the reward is at the discretion of the respective commission and factors to be considered in calculating the amount of the award include the significance of the information provided by the whistleblower, the degree of assistance provided by the whistleblower, the interest of the respective commission in deterring violations by making awards to whistleblowers, and other factors that the each commission may establish by rule or regulation. Id. An award shall not be paid to a whistleblower who has been convicted of a criminal violation related to the judicial or administrative action for which the whistleblower provided information; who gains the information by auditing financial statements as required under the securities laws; who fails to submit information to the SEC as required by an SEC rule; or who is an employee of the DOJ or an appropriate regulatory agency, a self-regulatory organization, the Public Company Accounting Oversight Board or a law enforcement organization. Id. Sections 748 and 922 of Dodd-Frank are not qui tam provisions, i.e., the whistleblower cannot pursue an action if the SEC or CFTC decline to act on the whistleblower’s disclosure.
All you need to know about discipline and dismissal Pat Coyle
Employment Law Update with a complete synopsis of everything you need to know about discipline and dismissal, focussing on the grounds for dismissal, handling a disciplinary matter, suspension, investigation, disciplinary sanctions and the overlap of discipline and grievance
The document discusses various ways to challenge decisions made by administrative tribunals, including internal review processes, statutory rights of appeal, and judicial review. It provides details on when and how to request internal reconsideration or review of a decision, the standards of review that courts apply to appeals of administrative decisions, and the options courts have for remedying errors found in administrative decisions. The document focuses on the law and procedures governing challenges to decisions in Ontario.
After the Panic Subsides – What Should You Do When the Inspector Leaves?Burns White LLC
The steps taken after a bad inspection, be it environmental, OSHA, labor, or anything else, are often “outcome determinative.” This presentation addresses some key things to consider in the days and weeks ahead.
Administrative law governs administrative agencies and their powers. Agencies are created by legislatures to implement laws and solve problems, guided by intelligible principles from Congress. Agencies can make rules, conduct hearings on claims, and issue decisions. Hearings involve parties, evidence, and a decision by an administrative law judge. Judicial review allows courts to examine agency decisions for compliance with law and policy. This oversight balances agencies' expertise with constitutional protections.
The proliferation of whistleblower retaliation and reward laws has created a complex maze of claims and remedies. This brown bag will examine issues that frequently arise in private sector whistleblower cases. The topics will include recent developments under the Sarbanes-Oxley and Dodd-Frank Acts, preserving retaliation claims while pursuing reward claims, choosing the optimal forum, minimizing claim splitting and claim preclusion risks, and exhausting administrative remedies.
This seminar aims to give practical advice to those investigating and prosecuting regulatory offences. We also look at the new powers of the Magistrates and sentencing guidelines for regulatory offences to assist you in presenting cases to ensure meaningful penalties are imposed.
We will be covering:
• immediate challenges in the hours and days after an incident
• identifying the suspect
• preparing your case - admissible evidence
• effective use of compulsory powers
• interview under caution - disclosure, defence tactics and how to deal with them
• drafting effective case summaries and Friskies Schedules
• the reluctant defendant - basis of a guilty plea, unused material and costs
• sentencing - giving the court the tools to do the job - including Proceeds of Crime Act and the new sentencing guidelines for regulatory offences.
This session is delivered by experienced solicitor-advocates who have advised local authorities on a variety of criminal and regulatory investigations and prosecutions as well as prosecuting on behalf of a range of other regulators including the Health and Safety Executive. It is intended to supplement your existing knowledge and assist you in building stronger cases able to withstand scrutiny in the Magistrates and Crown Court.
https://www.brownejacobson.com/sectors-and-services/services/regulatory
Don’t miss this chance to catch up on recent developments under whistleblower reward and whistleblower protection laws, including developments under the whistleblower provisions of the Dodd-Frank Act, the Sarbanes-Oxley Act, and False Claims Act. Our experienced faculty panel will provide you with practical insights on the following issues:
Impact of Supreme Court’s decision in Somers v. Digital Realty Trust on corporate whistleblowers and corporate compliance programs
Recent SEC whistleblower awards
Trend in DOL Administrative Review Board and federal court decisions on the scope of Sarbanes-Oxley protected conduct
The impact of the Supreme Court’s decision in Universal Health Services v. United States ex rel. Escobar on implied certification claims
The scope of the False Claims Act’s anti-retaliation provision and the interplay of whistleblower reward and whistleblower protection claims
Best practices for investigating and responding to whistleblower disclosures and
Tips for representing whistleblowers at the DOJ, SEC, CFTC, and IRS.
The document summarizes the adjudication process used by administrative agencies. It begins with an overview of adjudication and due process requirements. It then describes two common ways adjudication can begin - through agency inspections or public complaints. The multi-step processes typically involve an agency investigation, formal charges, a hearing before an administrative law judge, an initial decision, and opportunities for appeal. The goal is to determine violations of law while satisfying constitutional guarantees of due process.
Staying Out of Trouble (with the California State Bar) 2016Gabriela Ocampo
The document discusses the disciplinary process for attorneys in California. It begins with an overview of how complaints are investigated and may lead to charges and a trial in the State Bar Court. It then covers sources of complaints, reasons for a rise in complaints in 2009-2010, ways for attorneys to protect themselves in retainer agreements, rules regarding fees and referrals, duties and reporting requirements for attorneys, and examples of attorney misconduct cases.
This document discusses different types of rulemaking procedures used by federal agencies in the United States. It describes informal rulemaking (also called notice-and-comment rulemaking), formal rulemaking, and hybrid rulemaking. Informal rulemaking, governed by Section 553 of the Administrative Procedure Act, involves an agency publishing a notice of proposed rulemaking, accepting public comments, and then issuing a final rule. Formal rulemaking, guided by Sections 556 and 557, involves a trial-like hearing process. Hybrid rulemaking incorporates additional procedures beyond informal rulemaking to prevent arbitrary rules from being issued.
Thanks to FosterThomas for a great TechFocus Program: Compliance Challenges for Small Businesses doing Business with the Government
Thursday, July 28, 2011, 7:30 am - 9:30 am
Missed the program? Don\'t miss the resources: Here are the slides from the presentation!
Employment Law Issues for the Gig EconomyRoger Royse
Discussion on misclassification of employment, managing risks of employment, strategies for avoiding misclassification, and changes in the legal landscape with regards to employment.
Emploment law issues for the gig economyRoger Royse
Discussion on misclassification of employment, managing risks of employment, strategies for avoiding misclassification, and changes in the legal landscape with regards to employment
This document discusses the powers and functions of administrative agencies in the Philippines, including fact-finding, investigative, licensing, and rate-fixing powers. It also covers judicial review of administrative decisions. The key points are: 1) Administrative agencies have powers to ascertain facts, investigate matters, issue licenses, and fix rates; 2) Their findings of fact are generally given great deference; 3) Judicial review is allowed for questions of law, grave abuse of discretion, and constitutional issues; and 4) The doctrines of primary jurisdiction and exhaustion of administrative remedies guide when courts can intervene in administrative matters.
As soon as businesses decide to merge, the respective legal teams from each entity must immediately mobilize and accurately deploy a merger plan that addresses everything from due diligence to the final filings. Any missed steps can incur serious costs or cause adverse delays.
This document summarizes a presentation on finding money owed from tenants. The presentation covered pre-lease investigations of tenants, proper lease documentation, handling tenant defaults, the eviction process, post-judgment collection options, and common mistakes to avoid. Topics included conducting thorough background checks, using personal guarantees, promptly serving default notices, enforcing judgments against tenants and guarantors, and developing a consistent collection strategy.
This document summarizes current employment law risks and compliance issues for employers in 2016, including federal blacklisting laws, hiring practices, leave policies, wage and hour regulations, independent contractor classification, and dispute resolution requirements. It outlines new laws and regulations across these areas that increase employer liability, such as expanded definitions of labor law violations, city-level minimum wage and benefit mandates, joint employer standards, and limits on arbitration and non-compete agreements. The document warns that non-compliance in these changing areas exposes employers to litigation, penalties, lost defenses, and higher damages from employees.
The document summarizes recent developments in whistleblower law, including jury verdicts awarding millions of dollars in damages in Sarbanes-Oxley (SOX) retaliation cases. It discusses expansions to the types of conduct protected under SOX, Dodd-Frank, the False Claims Act, and the National Defense Authorization Act. It also notes increased enforcement by the SEC of Dodd-Frank's anti-gag provision and compares the differences between protections offered under the various whistleblower statutes.
Agency discretion refers to the power of administrative agencies to make choices among different policy options when applying laws to individual cases. Some level of discretion is necessary because laws may not address every situation. Safeguards against abuse of discretion include constitutional protections, statutes that define an agency's mission, and political and judicial oversight. Courts generally uphold an agency's discretion but will intervene if the agency's actions are deemed arbitrary, capricious or an abuse of power based on the circumstances of the case.
The Dodd-Frank Act whistleblower provisions reward whistle blowing and protect whistleblowers against retaliation. The Dodd-Frank Act creates a robust retaliation action for employees in the financial services industry. The scope of coverage is quite broad in that Section 1057 applies to organizations that extend credit or service or broker loans; provide real estate settlement services or perform property appraisals; provide financial advisory services to consumers relating to proprietary financial products, including credit counseling; or collect, analyze, maintain, or provide consumer report information or other account information in connection with any decision regarding the offering or provision of a consumer financial product or service.
Under the Dodd-Frank Act, an individual who provides original information to the SEC or Commodity Futures Trading Commission (“CFTC”) which results in monetary sanctions exceeding $1 million shall be paid an award of 10 to 30 percent of the amount recouped. See Dodd-Frank Act § 748 (applying to CFTC whistleblowers) and § 922(a) (applying to SEC whistleblowers). The amount of the reward is at the discretion of the respective commission and factors to be considered in calculating the amount of the award include the significance of the information provided by the whistleblower, the degree of assistance provided by the whistleblower, the interest of the respective commission in deterring violations by making awards to whistleblowers, and other factors that the each commission may establish by rule or regulation. Id. An award shall not be paid to a whistleblower who has been convicted of a criminal violation related to the judicial or administrative action for which the whistleblower provided information; who gains the information by auditing financial statements as required under the securities laws; who fails to submit information to the SEC as required by an SEC rule; or who is an employee of the DOJ or an appropriate regulatory agency, a self-regulatory organization, the Public Company Accounting Oversight Board or a law enforcement organization. Id. Sections 748 and 922 of Dodd-Frank are not qui tam provisions, i.e., the whistleblower cannot pursue an action if the SEC or CFTC decline to act on the whistleblower’s disclosure.
All you need to know about discipline and dismissal Pat Coyle
Employment Law Update with a complete synopsis of everything you need to know about discipline and dismissal, focussing on the grounds for dismissal, handling a disciplinary matter, suspension, investigation, disciplinary sanctions and the overlap of discipline and grievance
The document discusses various ways to challenge decisions made by administrative tribunals, including internal review processes, statutory rights of appeal, and judicial review. It provides details on when and how to request internal reconsideration or review of a decision, the standards of review that courts apply to appeals of administrative decisions, and the options courts have for remedying errors found in administrative decisions. The document focuses on the law and procedures governing challenges to decisions in Ontario.
After the Panic Subsides – What Should You Do When the Inspector Leaves?Burns White LLC
The steps taken after a bad inspection, be it environmental, OSHA, labor, or anything else, are often “outcome determinative.” This presentation addresses some key things to consider in the days and weeks ahead.
Administrative law governs administrative agencies and their powers. Agencies are created by legislatures to implement laws and solve problems, guided by intelligible principles from Congress. Agencies can make rules, conduct hearings on claims, and issue decisions. Hearings involve parties, evidence, and a decision by an administrative law judge. Judicial review allows courts to examine agency decisions for compliance with law and policy. This oversight balances agencies' expertise with constitutional protections.
The proliferation of whistleblower retaliation and reward laws has created a complex maze of claims and remedies. This brown bag will examine issues that frequently arise in private sector whistleblower cases. The topics will include recent developments under the Sarbanes-Oxley and Dodd-Frank Acts, preserving retaliation claims while pursuing reward claims, choosing the optimal forum, minimizing claim splitting and claim preclusion risks, and exhausting administrative remedies.
This seminar aims to give practical advice to those investigating and prosecuting regulatory offences. We also look at the new powers of the Magistrates and sentencing guidelines for regulatory offences to assist you in presenting cases to ensure meaningful penalties are imposed.
We will be covering:
• immediate challenges in the hours and days after an incident
• identifying the suspect
• preparing your case - admissible evidence
• effective use of compulsory powers
• interview under caution - disclosure, defence tactics and how to deal with them
• drafting effective case summaries and Friskies Schedules
• the reluctant defendant - basis of a guilty plea, unused material and costs
• sentencing - giving the court the tools to do the job - including Proceeds of Crime Act and the new sentencing guidelines for regulatory offences.
This session is delivered by experienced solicitor-advocates who have advised local authorities on a variety of criminal and regulatory investigations and prosecutions as well as prosecuting on behalf of a range of other regulators including the Health and Safety Executive. It is intended to supplement your existing knowledge and assist you in building stronger cases able to withstand scrutiny in the Magistrates and Crown Court.
https://www.brownejacobson.com/sectors-and-services/services/regulatory
Don’t miss this chance to catch up on recent developments under whistleblower reward and whistleblower protection laws, including developments under the whistleblower provisions of the Dodd-Frank Act, the Sarbanes-Oxley Act, and False Claims Act. Our experienced faculty panel will provide you with practical insights on the following issues:
Impact of Supreme Court’s decision in Somers v. Digital Realty Trust on corporate whistleblowers and corporate compliance programs
Recent SEC whistleblower awards
Trend in DOL Administrative Review Board and federal court decisions on the scope of Sarbanes-Oxley protected conduct
The impact of the Supreme Court’s decision in Universal Health Services v. United States ex rel. Escobar on implied certification claims
The scope of the False Claims Act’s anti-retaliation provision and the interplay of whistleblower reward and whistleblower protection claims
Best practices for investigating and responding to whistleblower disclosures and
Tips for representing whistleblowers at the DOJ, SEC, CFTC, and IRS.
The document summarizes the adjudication process used by administrative agencies. It begins with an overview of adjudication and due process requirements. It then describes two common ways adjudication can begin - through agency inspections or public complaints. The multi-step processes typically involve an agency investigation, formal charges, a hearing before an administrative law judge, an initial decision, and opportunities for appeal. The goal is to determine violations of law while satisfying constitutional guarantees of due process.
Staying Out of Trouble (with the California State Bar) 2016Gabriela Ocampo
The document discusses the disciplinary process for attorneys in California. It begins with an overview of how complaints are investigated and may lead to charges and a trial in the State Bar Court. It then covers sources of complaints, reasons for a rise in complaints in 2009-2010, ways for attorneys to protect themselves in retainer agreements, rules regarding fees and referrals, duties and reporting requirements for attorneys, and examples of attorney misconduct cases.
This document discusses different types of rulemaking procedures used by federal agencies in the United States. It describes informal rulemaking (also called notice-and-comment rulemaking), formal rulemaking, and hybrid rulemaking. Informal rulemaking, governed by Section 553 of the Administrative Procedure Act, involves an agency publishing a notice of proposed rulemaking, accepting public comments, and then issuing a final rule. Formal rulemaking, guided by Sections 556 and 557, involves a trial-like hearing process. Hybrid rulemaking incorporates additional procedures beyond informal rulemaking to prevent arbitrary rules from being issued.
Thanks to FosterThomas for a great TechFocus Program: Compliance Challenges for Small Businesses doing Business with the Government
Thursday, July 28, 2011, 7:30 am - 9:30 am
Missed the program? Don\'t miss the resources: Here are the slides from the presentation!
Employment Law Issues for the Gig EconomyRoger Royse
Discussion on misclassification of employment, managing risks of employment, strategies for avoiding misclassification, and changes in the legal landscape with regards to employment.
Emploment law issues for the gig economyRoger Royse
Discussion on misclassification of employment, managing risks of employment, strategies for avoiding misclassification, and changes in the legal landscape with regards to employment
This document discusses the powers and functions of administrative agencies in the Philippines, including fact-finding, investigative, licensing, and rate-fixing powers. It also covers judicial review of administrative decisions. The key points are: 1) Administrative agencies have powers to ascertain facts, investigate matters, issue licenses, and fix rates; 2) Their findings of fact are generally given great deference; 3) Judicial review is allowed for questions of law, grave abuse of discretion, and constitutional issues; and 4) The doctrines of primary jurisdiction and exhaustion of administrative remedies guide when courts can intervene in administrative matters.
As soon as businesses decide to merge, the respective legal teams from each entity must immediately mobilize and accurately deploy a merger plan that addresses everything from due diligence to the final filings. Any missed steps can incur serious costs or cause adverse delays.
This document summarizes a presentation on finding money owed from tenants. The presentation covered pre-lease investigations of tenants, proper lease documentation, handling tenant defaults, the eviction process, post-judgment collection options, and common mistakes to avoid. Topics included conducting thorough background checks, using personal guarantees, promptly serving default notices, enforcing judgments against tenants and guarantors, and developing a consistent collection strategy.
This document summarizes current employment law risks and compliance issues for employers in 2016, including federal blacklisting laws, hiring practices, leave policies, wage and hour regulations, independent contractor classification, and dispute resolution requirements. It outlines new laws and regulations across these areas that increase employer liability, such as expanded definitions of labor law violations, city-level minimum wage and benefit mandates, joint employer standards, and limits on arbitration and non-compete agreements. The document warns that non-compliance in these changing areas exposes employers to litigation, penalties, lost defenses, and higher damages from employees.
The document summarizes recent developments in whistleblower law, including jury verdicts awarding millions of dollars in damages in Sarbanes-Oxley (SOX) retaliation cases. It discusses expansions to the types of conduct protected under SOX, Dodd-Frank, the False Claims Act, and the National Defense Authorization Act. It also notes increased enforcement by the SEC of Dodd-Frank's anti-gag provision and compares the differences between protections offered under the various whistleblower statutes.
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Between a Rock and a Hard Place – When Criminal Law Overlaps Administrative Law
1. San Luis ObispoCounty Bar Association
CriminalLawSection
Between a Rock and a Hard Place – When Criminal Law
Overlaps Administrative Law
November 12, 2015 PM
Steven L. Simas
2. Presenter
• Steven L. Simas, Esq. – ssimas@simasgovlaw.com
• Owner and Founder of Simas & Associates, Ltd.
• Offices in San Luis Obispo, Sacramento, Santa Rosa
• Former Deputy Attorney General, Office of the Attorney General
• Practicing Administrative, Healthcare and Professional Licensing Law since 1990
• Member California Academy of Attorneys for Healthcare Professionals
• Past President, Sacramento County Bar Association, Administrative Law Section
• Former Counsel, Public Employment Relations Board
3. Betweena Rockand a Hard Place – When
Criminal LawOverlapsAdministrativeLaw
• Summary Overview
1. Administrative Process and Hearing Overview
2. Substantially Related to the Profession
3. Common Procedural Complexities
• Overall Goals of Presentation
• Obtain a better understanding of the overlap.
• How best to advise clients on what to expect.
• When negotiating plea bargains, recognizing the impact and
giving it appropriate weight (even if client does not).
• Consult with an experienced administrative law attorney when
dealing with complexities of a particular charge.
4. Administrative Process and Hearing
Overview
Law Governing
Administrative
Adjudicative
Process
Beyond
Administrative
Adjudication
• Constitutions (U.S., California)
• Administrative Procedure Act
(Government Code §§ 11400, et al.)
• California Code of Regulations
• Business & Professions Code
• Evidence Code
• Code of Civil Procedure
• California Rules of Professional Conduct
• Precedential Decisions – within an
Executive Agency
• Case Law – California Judicial Branch
• Rulemaking
• Discretionary and Ministerial Acts
• Public Records Act
• Government Claims Act
• Open Meetings Law
• Fair Political Process
5. AdministrativeProcessandHearingOverview
(Background)
•Executive Agencies
•Local, Municipal, Regional Government
•Some Private Entities engaged in Public Function
Bodies Subject to
Administrative
Adjudication
•Legislature
•Office of the Governor
•Judicial Branch
•Courts
Bodies Not Subject
to Administrative
Adjudication
•Office of Administrative Hearings
•Administrative Law Judges (ALJs)
•4 offices – Sacramento, Los Angeles, Oakland, San Diego
•http://www.dgs.ca.gov
Adjudicating Body
6. AdministrativeProcessandHearingOverview
(Pre-Charge)
Investigation by State Agency
•Government Code § 11180
•Triggered by Consumer Complaint, Tip
from Other Agency, Database, Self-
Reporting.
•Could exceed 2 years.
•Oftentimes can involve an Audit.
•Licensee has a duty to cooperate.
Interview of
Licensee/Applicant
•More common in complicated,
substantive types of licensing discipline.
•Recorded, under oath.
•Right to invoke 5th Amendment Privilege
Against Self-Incrimination.
Charging Document –
Accusation/Statement of
Issues
•Should indicate jurisdiction.
•Should indicate statutes and regulations
alleged to have been violated.
•Should indicate standard of conduct
breached.
•Disciplinary Guidelines are found in
Regulations.
•Might include a Temporary Suspension
Order on Licensed Activity.
7. AdministrativeProcessandHearingOverview
(Continued–Pre-HearingProcess)
Notice of Defense
•15 days (+5 if served via mail) to
respond.
•Can file general denial, but then
waive rights to affirmative defenses,
demurrer.
•Can file late special notice with
Agency permission (Gov. Code §
11506(b).)
•Default – agency can take license
discipline without hearing.
Discovery – Documents,
Subpoenas, Limited
Depositions
•Can file motions to compel, motions
to quash, motions in limine.
•OAH cannot impose sanctions but
can certify facts to present to
Superior Court.
Pre-Hearing Settlement
Conference Statement
•Conference usually 30 days in
advance of hearing.
•Provide ALJ with background on
case, identify evidentiary/witness
issues, attempts to settle.
8. AdministrativeProcessandHearingOverview
(Continued–HearingProcess)
Pre-Hearing
Settlement
Conference
• 2-4 hours.
• Licensee and individual
with settlement authority
from agency must be
present.
Expert Witness
Disclosure
• More common in cases
involving substantive types
of licensing discipline.
• More often than not make
or break the case.
Administrative
Hearing
• Executive Agency (in
licensing matters) has the
burden of proof.
• Present exculpatory
evidence and evidence of
rehabilitation.
9. AdministrativeProcessandHearingOverview
(Continued–DecisionProcess)
Closing Arguments
• Sometimes given opportunity to
present closing arguments after
review of administrative record
and transcript.
ALJ’s Decision
• Must define jurisdiction.
• Must determine whether the
alleged misconduct took place
(beyond a preponderance or
clear and convincing).
• Must take into consideration all
rehabilitation, mitigating, and
character evidence presented.
Agency Adoption
• Executive Agency and/or its
Executive Director has the
discretion to adopt, adopt with
modification, or decline to
adopt ALJ’s decision.
• Could set a new hearing or
decide matter on its own.
10. AdministrativeProcessandHearingOverview
(Continued–Post-HearingProcess)
Petition for
Reconsideration
•Attempt to present any other
type of evidence or argument
that was improperly denied or
prevented at hearing.
•Vehicle to set aside defaults.
•Must be done shortly after
Notice of Adoption of ALJs
Decision.
Petition for Writ of
Administrative (or
Traditional Mandate) in
Superior Court
•Judicial review of the
administrative adjudication.
•Often coupled with an ex parte
Request for Stay.
Petition for Reinstatement
or Modification of
Probation
•An attempt to demonstrate
overwhelming evidence of
Rehabilitation and Correction,
enough to warrant a reduction in
discipline imposed.
11. AdministrativeProcessandHearingOverview
(DifferencesinCommonChargingDocuments)
• Statement of Issues
• Denial of a license application.
• Citations
• Business & Professions Code § 125.9
• Fine, Order of Abatement, Order of Correction
• Compare to a traffic ticket or ordinance violation – a statutorily recognized alternative to
disciplinary proceedings
• Nevertheless, can be contested via administrative hearing
• Accusations
• Revocation, suspension, or restriction of an already issued license.
• Petition to Revoke Probation or Restricted License
• Type of pleading used to impose a previously ordered discipline that had been stayed pending
suspension, probation, or the completion of some specified form of education, rehabilitation.
• Temporary Suspension Orders
• “permitting the licensee to continue to engage in the licensed activity will endanger the
public health, safety, or welfare”
• Interim Suspension Order – Administrative
• Business & Professions Code § 494; Government Code § 11529
• If without notice, a hearing must be held on Accusation within 20 days.
• Temporary Restraining Order – Judicial
• Business & Profession Code §§ 125.5 – 127.8
• Hearing must be held on Accusation within 30 days after issuance.
12. AdministrativeProcessandHearingOverview
(DifferencesinTypesofDiscipline)
• Determination of Appropriate Penalty
• Mandated by Statute
• Prior Decisions – accessible through Public Records Act
• Disciplinary Guidelines
• Rehabilitation Criteria
• Types of Discipline
• Revocation
• License Surrender
• Suspension
• Probation (Restricted License, Stayed Revocation)
• Public Reproval
• Civil Penalties/Fines
• Mandatory Restitution
• Cost Recovery
• Training, Education
• Therapy or Treatment
13. Substantially Related to the Profession
• May deny, suspend, or revoke a license on the ground that the
applicant or licensee has been convicted of a crime, if the
crime is substantially related to the qualifications, functions,
or duties of the business or profession for the license sought
or for which the license was issued. (Business & Professions
Code §§ 480, 490.)
• Typically includes:
• Almost all felonies
• Crimes of “moral turpitude” – domestic violence, dishonesty, sexual
misconduct, controlled substance abuse.
• Does not require that the crime be committed while the licensee
or applicant was engaged in licensed activities.
14. Substantially Related to the Profession
Can look beyond the “conviction” to the underlying conduct that led
to the conviction (Lone Star Sec. & video, Inc. v. Bureau of Sec. &
Investigative Servs. (2009) 176 Cal.App.4th 1249, 1256):
• “Disturbing the Peace” was considered substantially related to the
profession when a licensed alarm manager drew his weapon without
proper cause in violation of Business & Professions Code § 7597.3(c).
Evidence that the licensee, armed with a rifle, chased a woman
down a residential street at 10:00 p.m. and then held her at
gunpoint because he saw her tearing fliers off his company sign
trailer was sufficient to support the finding.
• Importance in designation is that the conviction itself is
sufficient proof of guilt – there is no need to re-litigate the
issue of guilt. (Arneson v. Fox (1980) 28 Cal.3d 440, 447.)
15. SubstantiallyRelatedtotheProfession
(FurtherBackground)
Agency Requirements
•Must set out the “substantial relationship” criterion within its regulations (Bus. & Prof. Code
§ 481.)
•Must include a general definition.
•Licensing agencies do not "enjoy unfettered discretion to determine on a case-by-case basis
whether a given conviction is substantially related to the relevant professional
qualifications" but must instead rely on their written criteria. (Donaldson v. Department of
Real Estate (2005) 134 Cal.App.4th 948, 955.)
•List of violations presumed to be “substantially related”.
•Admissibility of Police Report without foundation at admin hearing (Lake v. Reed (1997) 16
Cal.4th 448; Evidence Code 1280).
Disproving Substantial Relationship
•Review the statutes, regulations, disciplinary guidelines.
•Determine the definition of what is “substantially related”.
•Find the list of crimes that fit that definition or are specified.
•Examine facts of what is alleged, charged, convicted, and what is the profession.
•Produce Expert Witness Testimony.
16. SubstantiallyRelatedtotheProfession
(Convictions)
What Constitutes a Conviction?
• Bus. & Prof. Code §§ 480, 490
• Defined as a plea or verdict of guilty
• Pleas and verdicts of “guilty” are presumed to permit the issuance of license
discipline, even in the absence of an authorizing statute, as they are a "reliable
indicator of actual guilt" to support a disciplinary charge. (Cartwright v. Board of
Chiropractic Exam'rs (1976) 16 Cal.3d 762, 773.)
• OR a conviction following a plea of nolo contendere (no contest).
• Only if a specific statute so provides. “A nolo contendere plea does not constitute a
conviction absent a legislative determination that such pleas and convictions are
sufficiently reliable indicators of guilt to warrant disciplinary measures for
protection of the public." (Id. at 774.)
• Most licensing agencies’ statutes so provide.
What does not Constitute a Conviction?
• Acquittal – but does not serve as Res judicata or collateral estoppel given the higher
standard of proof in criminal cases.
• Arrest
17. SubstantiallyRelatedtotheProfession
(Convictions)
Expungement
• Dismissal of a conviction under Penal Code § 1203.4 does not prevent a
licensing agency from bringing a disciplinary action based on the
conviction. (Bus. & Prof. Code § 490(c); Krain v. Medical Bd. (1999) 71
Cal.App.4th 1416, 1420 [agency may take disciplinary action based on expunged
conviction unless statute provides otherwise].)
• An expungement may be relevant to a license discipline case as evidence of
mitigation or rehabilitation. (See, e.g., 16 Cal Code Regs § 99.1(5) [Board of
Accountancy will consider evidence of expungement proceedings in evaluating
licensee's rehabilitation].) Several agencies are required by law to "give special
consideration" to applicants whose convictions have been dismissed pursuant
to Penal Code § 1203.4.
Substance Abuse Conviction Notwithstanding Drug Diversion
• A licensing agency may bring disciplinary action even if the licensee successfully
completes a drug diversion program as part of a criminal case under Penal Code
§ 1000.5 (Bus. & Prof. Code § 492).
18. Procedural Complexities
•No constitutional guarantee of representation in administrative proceedings.
(Borror v. Department of Inv. (1971) 15 Cal.App.3d 531.)
•No constitutional guarantee of effective counsel in administrative proceedings.
(White v Board of Med. Quality Assur. (1982) 128 Cal.App.3d 699, 707.)
Right to
Counsel
•An administrative hearing is generally not continued or abated when a criminal
action based on the same facts is pending against the same party. (Savoy Club v.
Board of Supervisors (1970) 12 Cal.App.3d 1034, 1038.)
•Because administrative proceedings involving license revocation are not criminal
in nature but are set up by the legislature to protect the public, it would frustrate
the legislative intent to abate the administrative proceeding until the conclusion
of the criminal action. (Funke v. DMV (1969) 1 Cal.App.3d 449.)
•An agency or administrative law judge (ALJ) does not have to grant a continuance
because counsel is not available on the date set for the hearing. (Givens v.
Department of Alcoholic Beverage Control (1959) 176 Cal.App.2d 529.)
Continuances
19. ProceduralComplexities
(Continued)
•When an administrative remedy is required by statute or by rule of the agency
involved, the aggrieved party must use that procedure or remedy before seeking
any other remedy, such as direct review by a superior court. (Abelleira v. District
Court of Appeal (1941) 17 Cal.2d 280.)
•This is a jurisdictional prerequisite, not a matter of judicial discretion. (Palmer v.
Regents of Univ. of Cal. (2003) 107 Cal.App.4th 899.)
•Exhaustion of administrative remedies also applies when an agency establishes
an internal grievance mechanism (Palmer v. Regents of Univ. of Cal. (2003) 107
Cal.App.4th 899), and to proceedings such as hospital peer review. (Kaiser
Found. Hosp. v Superior Court (Dennis-Johnson) (2005) 128 Cal.App.4th 85.)
Exhaustion of
Administrative
Remedies
•Res judicata, also known as claim preclusion, may preclude the subsequent
litigation of a claim litigated and decided in a previous proceeding. Collateral
estoppel, also known as issue preclusion, prevents relitigation of an issue decided
in the first proceeding even though the claim in the subsequent proceeding may
be different from the first.
•Works both ways:
•favorable decision in an administrative proceeding may be used by the licensee
in a civil or criminal case.
•negative decision in a civil or criminal proceeding may be used against the
licensee in his or her administrative proceeding.
Res Judicata
and Collateral
Estoppel
20. ProceduralComplexities
(Continued)
•In some circumstances, the combination of function (investigatory, prosecutory,
adjudicatory) within a single agency may violate due process and the fair hearing
process.
•When same person(s) who investigated, bring the charges or are involved in the
adjudicative function. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108
Cal.App.4th 81, 95.)
•Composition of the decision-making body are not competent or unbiased
according to statute. (American Motors Sales Corp. v. New Motor Vehicle
Bd. (1977) 69 Cal.App.3d 983, 991.)
Combination
of Function
•The basic guarantee a licensee is provided – a fair hearing.
•The principles of due process determine whether the hearing granted by an
agency was fair. Additional procedural requirements are sometimes provided in
the statutes governing particular agencies, and these statutes should be
consulted. State statutes, however, cannot take away federal protections.
•It varies, given the factual circumstances.
•It does not require any particular form of notice or method of procedure; all that
is required is reasonable notice and a reasonable opportunity to be heard.
Fair Hearing
Process
21. ProceduralComplexities
(Continued)
•Evidence of a statement made at another time or place than by the witness testifying at the hearing
and offered to prove the truth of the matter stated. (Evid. Code § 1200.)
•Includes the following types:
•Transcript of telephone call to Police Department (Melkonians v. Los Angeles County Civil Serv.
Comm'n (2009) 174 Cal.App.4th 1159, 1170.);
•Examination reports from a sister state containing allegations of misconduct;
•Verified civil complaint;
•Administrative Hearsay evidence is permitted into Evidence, when supplementing or explaining
other evidence. (Gov. Code § 11513(d); Berg v. Davi (2005) 130 Cal.App.4th 223.)
•Cannot be the sole evidence upon which a finding is based. (Gov. Code § 11513(c).)
Use of
Administrative
Hearsay
Evidence
•Hearsay evidence that would normally be admitted over objection in a civil proceeding are NOT
administrative hearsay.
•Rather, this evidence CAN be used as sole evidence to support a finding.
•Includes the following types:
•A police officer’s report (Lake v. Reed (1997) 16 Cal.4th 448, 461) even if it contains another
officer’s observations (Gananian v. Zolin (1995) 33 Cal.App.4th 634.) ;
•Testimony offered to prove not the truth of a statement but that the statement was made.
Hearsay
Evidence
Admitted Over
Objection
22. ProceduralComplexities
(Continued)
• Permitted to be used and accepted as direct oral
testimony unless opposing party objects and requests
to cross-examine. (Gov. Code § 11514(a).)
• If party fails to produce affiant/declarant in response
to objection, the affidavit/declaration is still admitted
as administrative hearsay. (Gov. Code § 11513(c).)
Use of
Affidavit/Declarations
• At discretion of the agency or the ALJ, similar matters
may be consolidated into a single hearing.
• A matter may be severed from an existing hearing
upon motion of either party or the ALJ in the interest
of prejudice or convenience.
Consolidation or
Severance of Hearing
23. ProceduralComplexities
(CommonDefenses)
Lack of Jurisdiction
• An agency can only act within statutory authority. If the agency has misinterpreted a statute, it may be a
defense for the licensee.
• Regulations must be promulgated under the APA.
Constitutionality
• An agency cannot declare a law unconstitutional. And failing to raise constitutionality at hearing does not
waive the defense.
• Must be raised on a Petition for a Writ of Administrative Mandate.
Statute of Limitations
• Statutes of limitation barring civil actions do not apply to a disciplinary proceeding of a state
administrative agency.
• There is no specific time limitation for administrative proceedings unless the legislature has imposed a
statute of limitation for a particular proceeding. (City of Oakland v. Public Employees' Retirement
Sys. (2002) 95 Cal.App.4th 29, 34.)
• If they have, they are more often than not 3 years.
Doctrine of Laches
• Trial court may dismiss the administrative proceeding if it is not diligently prosecuted or there has been
unreasonable preaccusation delay and the licensee has been prejudiced. (Steen v. City of Los
Angeles (1948) 31 Cal.2d 542, 546.)
24. ProceduralComplexities
(CommonDefenses)
Privilege Against Self-Incrimination
• Licensing agency can compel a licensee to testify at a proceeding. (Gov. Code &
11513(b); Black v. State Bar (1972) 7 Cal.3d 676.)
• Licensee can then refuse to testify concerning those matters that could lead to
criminal exposure.
Entrapment
• Applicable to administrative and licensing proceedings. (Patty v. Board of Med.
Exam'rs (1973) 9 Cal.3d 356, 367.)
• conduct of a law enforcement agent that "was likely to induce a normally law-abiding
person to commit the offense.“ (People v Barraza (1979) 23 Cal.3d 675, 689.)
Illegal Search and Seizure
• Where warrantless searches are permitted, they still must be conducted reasonably,
“tailored to administrative goals and purposes.” (People v Potter (2005) 128
Cal.App.4th 611, 619.)
• Limited applicability of exclusionary rule.
25. ProceduralComplexities
(EvidenceofRehabilitation,Mitigation)
Hearing on Evidence
Related to
Misconduct
• Asserting procedural and
substantive defenses.
• Demonstrating compliance
with relevant standard of
care.
Hearing on Evidence
of Rehabilitation,
Mitigation, and
Character
• Demonstrate restitution,
remorse for misconduct.
• Present corrective action –
through rehabilitation,
education, training.
• Demonstrate an altered
lifestyle – new friends,
colleagues, employment.
Administrative Adjudicative Licensing Proceedings by their very nature
combine the trial and sentencing functions into a single proceeding
26. ProceduralComplexities
(EvidenceofRehabilitation,Mitigation)
Mitigation Evidence
• Length of time since misconduct/conviction.
• Absence of prior convictions.
• Absence of post-misconduct discipline.
• Employment record.
• Restitution to injured parties.
• Reputation in the industry; General reputation in
community.
• Good faith actions and behavior by the licensee.
• Efforts made to avoid repetition.
• Acceptance of responsibility, remorse.
• Honest and earnest assistance during
investigation.
Rehabilitation Evidence
• Volunteering.
• Completion of court-order probation.
• Expungement of criminal conviction.
• Post-violation activities (i.e. employment,
education, contributing to social community,
etc.)
• Restitution (to injured parties, interests).
• Abstention from controlled substances
• Changed personal, profesisional, familial, or
social circumstances.
• Psychological treatment.
• This can lead to admissions or other forms of evidence which could
be used against the licensee in his or her criminal law matter.
• Nevertheless, here are relevant types of Rehabilitation and
Mitigation evidence:
27. Closing Points
• Ask. Do not rely upon your client to tell you that he/she has a license. Ask and
then explain that it will need to be something that they consider when reviewing
plea bargain offers.
• Self-Reporting. Find out if your client has a self-reporting obligation. Some
agencies, boards, bureaus, or commissions have such a requirement. And short
deadlines upon which to report.
• Need to “Earn Badges”. Clients need to start compiling evidence of
rehabilitation, mitigation, and character immediately. Even if they are not ready
(or it is not advisable) to engage in restitution, they must begin contributing to
the community.
• Start Identifying Character Witnesses. They may or may not prove helpful to
you in your criminal defense. But, again, directing your client to start compiling
letters of recommendation, support, testimonials, and endorsements will start
the process of being able to improve the client’s chances at keeping his or her
license.
• Check-in with an Administrative Law Attorney. You can look up whether the
alleged crime is substantially related and the disciplinary guidelines on your own.
However, just checking-in with an experienced administrative law attorney might
be worthwhile. You can double-check on items and bounce ideas off from him
or her.