<![CDATA[Los Angeles Legal Blog]]> tag:www.zdwlaw.com,2013-03-21:/blog/67471 2019-08-13T03:09:34Z Movable Type Enterprise <![CDATA[What is gross professional misconduct?]]> tag:www.zdwlaw.com,2019:/blog//67471.3810272 2019-08-13T03:10:34Z 2019-08-13T03:09:34Z Not all professional misconduct is the same. There are ordinary slip-ups that are labeled "misconduct." Then there are major mistakes that can cost you your reputation, your job and your professional license -- no matter what field you are in.

So, what's the difference?

]]> Ordinary misconduct is the kind of behavior that can get you a stern lecture in your boss's office or a write-up in your file. You may even get pulled down to the human resources department to have a terse discussion about the issue. It can include things like:

  • Disregarding your superior's directions without justification
  • A mistake that could have easily been avoided if you had taken more care
  • Not following the standard operating procedures outlined in your company handbook or rules

While any of these things can get you in trouble, you aren't likely to find your entire career in danger over them.

On the other hand, gross professional misconduct often looks like this:

  • You were extremely insubordinate to a superior -- perhaps getting into a verbal dispute in front of others, cursing and being openly hostile or derogatory.
  • You intentionally misused your internet access in a way that violates your professional code of conduct (for example, if you're a physician, looking at the medical records of a relative who isn't your patient).
  • You participated in some form of illegal discrimination or sexual harassment toward a co-worker.
  • You allowed a drug or alcohol problem to affect your judgment, and it injured a client or patient.
  • You committed some form of theft, fraud or graft against your company, clients or an insurer.

Obviously, these aren't the only possible ways to put your license in danger -- but they're some of the big ones. Should you find yourself accused of gross professional misconduct, take steps to protect your legal rights immediately.

<![CDATA[Study: Professional and marital misconduct are linked]]> tag:www.zdwlaw.com,2019:/blog//67471.3805954 2019-08-05T15:49:34Z 2019-08-05T15:48:34Z Researchers at the University of Texas at Austin have discovered a definitive connection between marital infidelity and professional misconduct -- regardless of the profession of the individual involved.

The study took a look at four different categories of people: financial advisors, people who had ultimately been convicted of white collar crimes, police officers and highly placed executives. The researchers focused on those who had used the now-infamous Ashley Madison website that encouraged marital infidelity under the mantra "Life is short. Have an affair." In total, researchers looked at 11.235 different people.

]]> The results of the study? In short, those professionals who used Ashley Madison's services were more than twice as likely to end up in trouble for professional misconduct.

What does this mean? Well, researchers and psychologists will probably be sorting out all the implications for a while, but it basically indicates that someone willing to skirt the "rules" in their personal life may also be willing to skirt the rules of their professional life as well. The same moral attitudes that allow someone to mentally justify cheating on their spouse may, for example, allow them to grift a little from a client or an employer or ignore the legal rights of a criminal suspect.

Researchers did suggest that creating a corporate culture that eliminates sexual misconduct in the workplace -- or maybe stressed morality in general -- could help eliminate some instances of professional misconduct. There's a lot to be said for that idea. When someone is surrounded by a corporate culture that tends to cut corners or sees the rules as something to be bent (if not outright broken), it can easily lead to a "Why not?" attitude.

While we certainly hope that you'll never find yourself facing an administrative hearing over professional misconduct, just remember that you don't have to handle it alone -- and you probably shouldn't.

<![CDATA[Radiologist surrenders license in California]]> tag:www.zdwlaw.com,2019:/blog//67471.3802224 2019-07-31T15:18:41Z 2019-07-31T15:17:41Z A San Luis Obispo radiologist has voluntarily surrendered his license to practice after an investigation into his alleged drug use, abuse of prescriptions and malpractice.

The investigation by the California Medical Board lasted nearly two years and looked all the way back to the radiologist's activities in 2010. During the investigation, his license to practice was suspended from May 2017 until February 2019. While he was under suspension, he was required to participate in monthly drug testing and drug addiction treatment.

]]> Ultimately, he didn't comply with the terms of his probation. Records show that the radiologist refused to participate in a monthly drug test at some point. He turned his license to practice over the next month, saying, "I decided that at age 65 it was time to retire."

According to the radiologist, his issues with the Board were "strictly of a personal nature." He claimed to never have harmed any of his patients. However, he admitted to writing prescriptions for controlled substances to his family members and friends back in 2010 and to misdiagnosing a patient once in 2016 due to his own drug use.

It's hard to determine from court documents alone the real nature of the problem that led to the radiologist coming to the Medical Board's attention. However, this case holds a warning for other medical professionals: No far is too far for the Medical Board to look back at your prescription habits.

Decades ago, when there was less concern over the opioid crisis, medical professionals sometimes did favors for friends and family members by writing them the occasional prescription for pain medications -- usually to save them a trip to a doctor.

Those type of actions can come back to haunt you nearly a decade or more later. If you find yourself under investigation, take the smart step: Contact an attorney with experience handling professional licensing investigations.

<![CDATA[Handling manipulative patients (and protecting your license)]]> tag:www.zdwlaw.com,2019:/blog//67471.3794638 2019-07-23T04:13:52Z 2019-07-23T04:12:52Z Every patient deserves empathy and respect -- even patients that, quite frankly, attempt to manipulate you.

Some manipulative patients simply want attention, while others may be seeking painkillers and other drugs. They may use flattery to try to gain your sympathy and -- if that fails -- resort to angry outbursts and threats of legal action to try to intimidate you into giving them what they want.

]]> It's essential that you have a plan in place for dealing with these kinds of patients. You will, without a doubt, encounter them eventually. To protect your reputation and your license from unfair accusations (just in case the patient makes good on his or her threat to report you to the Medical Board, no matter how unfairly), consider these steps:

  1. Use a treatment contract for patients who receive narcotics or other controlled substances. The contract should set out exactly how medication refills will be handled, how dosage increases will be managed, what happens if there's a problem and what recourse the patient has.
  2. Make sure that your entire staff understands the policies regarding patient contracts and patient interactions. Ultimately, you are responsible for your staff -- so take the time to educate each staff member of his or her role.
  3. Try to participate in shared decision-making with the patient. A patient who seems manipulative may just be angry and feel powerless. A shared decision-making process may change the dynamic for the better and alleviate the patient's anger and fear.
  4. Don't be afraid to address the "elephant in the room" with an angry or distressed patient. It's okay to say, "This has been a difficult visit. Let's schedule a follow-up to discuss what happened and come up with a better plan."
  5. Have a termination plan. While this should be a final option, you need to have a plan in place that will allow you to terminate your relationship with your patient without endangering his or her health. If you're unsure of what you need to do to protect yourself (and your license) seek experienced legal advice so that you avoid ethical violations.

Finally, remember this: You're human. You can't lose your temper with a patient, but you may need to take a personal time-out so you can vent; otherwise, let go of your feelings and get back to business.

<![CDATA[Are your poor tech skills jeopardizing your law practice?]]> tag:www.zdwlaw.com,2019:/blog//67471.3793123 2019-07-19T15:01:37Z 2019-07-19T15:00:37Z If your comfort level with technology stops at logging into your email account or checking your social media page, you may want to take steps to remedy that, especially if you practice law. While you certainly have enough to do keeping up with the ever-changing nuances of your practice area, technology is fast becoming a critical component in many legal battles. As a result, you may end up facing issues related to ethics or professional conduct if you fail to remain current with the changes in technology.

While the California State Bar does not formally include the duty to be technologically competent in its rules of ethics, you may understand that few legal cases do not in some way involve technology. Additionally, if you fail to understand the types of technology your own law office uses, you may find yourself facing serious allegations that could place your practice and your future at risk.

]]> What should I know?

While it is not necessary for you to have IT certification, you would be wise to know the kinds of technology most common in your area of practice. For example, if you practice family law, you will likely find the examination of emails, text messages and social media accounts is part of your investigation process. Additionally, more attorneys are turning to artificial intelligence to conduct their legal research, and clients may expect this to keep their legal fees down.

The use of the most basic technology in your law practice could potentially place client information at risk, especially if you are not familiar with how to effectively and securely use the technology, for example:

  • How to use PDF documents, especially when redaction is necessary
  • How to generate and remove metadata
  • How to protect client information, including protecting your computers from cyber-attacks and keeping information confidential when using cloud storage
  • How to effectively use courtroom technologies
  • How to utilize e-discovery platforms that comply with the rules of California courts

It is also important that you know as much as possible about the specific technologies your clients use, especially if you plan to address those technologies in court. If you do not understand a type of technology that is relevant to your case, you may not be able to provide your client with competent representation.

You cannot know everything

Because of the complex nature of many aspects of technology, you may face accusations of incompetence that are unwarranted. The question will be whether you made a reasonable effort to stay current with technological advances. When allegations about your professional conduct or ethical behavior arise, you would be wise to seek guidance from someone who understand how much you have a stake.

<![CDATA[What can get you disbarred in California?]]> tag:www.zdwlaw.com,2019:/blog//67471.3790405 2019-07-16T03:06:54Z 2019-07-16T03:05:54Z You worked for years to gain the knowledge you needed to pass the Bar exam and obtain your law license. It might seem a little unfair, then, that a mistake could strip you of your license to practice -- even though you still have all the requisite knowledge to be a good attorney.

Some things are more likely to get your license taken away than others. If you look at the most recent list of attorneys who have had their licenses put on probation, been suspended or outright been disbarred, you'll see a few specific trends.

]]> Here are the kinds of things that can result in serious disciplinary action against an attorney in California:

  • Drunk driving -- You're more likely to get a harsher penalty if you make this mistake twice or more (or injure someone). If you've already had one drunk driving conviction, don't take the risk again.
  • Dishonesty -- This covers a variety of sins involving "moral turpitude" and is often closely related with issues like corruption or obstruction of justice. A lawyer must never forget that they are first and foremost an officer of the court. Your actions always have to be above reproach.
  • Excessive fees and money woes -- Overcharging your clients, failing to return money you didn't actually earn, diverting a client's funds for your own use, not keeping accurate records and similar acts will get you anything from a suspended license and an order of restitution to a full disbarment, depending on the seriousness of the incident. Even an accidental mistake could cause problems. This is why it's important to have standard practices in your office that are designed to mitigate your risks.
  • Failing to comply with a probation condition -- If you're already in trouble with the Bar, pay attention to the terms of your probation. If you've agreed to oversee another attorney who is on probation, take the issue seriously, or you could be next.

Defending your professional license is nothing you want to attempt alone. If you've been accused of misconduct of any kind, seek experienced legal assistance right away.

<![CDATA[Data breaches and your medical practice (and license)]]> tag:www.zdwlaw.com,2019:/blog//67471.3785870 2019-07-08T22:12:38Z 2019-07-08T22:11:38Z Data breaches are a distinctly modern problem that your predecessors in the medical profession didn't have to worry about (at least, not to this extent). Because of the increased public focus on data breaches, a lax attitude toward your patient's privacy could put your practice -- and your medical license at risk.

What are the biggest "bad habits" regarding patient privacy that a doctor's office can have? They include:

]]> Variable compliance

Have you ever turned a blind eye to the fact that your office manager took some work home for the weekend -- even though nothing should ever leave the office? If so, you're putting your license in danger by knowingly allowing violations that could endanger patient privacy -- even if you have total faith in your office manager.

Inconsistent messages

Do you strictly insist on the same compliance policies regarding patient information for everyone? You need to have clear, defined policies regarding data storage and protection, and everybody needs to adhere to them. For example, some offices will allow a long-time employee more leeway when it comes to data security than a new employee. That's a big mistake. Everyone has to adhere to the same standards, at all times.

Delayed responses

When a violation of the rules does happen, do you respond immediately? Are you even-handed about punishments and sanctions? Or, do you wait to see what kind of fallout actually happens and decide on a punishment based on how much harm is actually done? If it's the latter, you aren't really doing your employees or your practice any favors. Consistency is always key to maintaining your integrity and the integrity of your office.

If a data breach has exposed your medical license to danger, get experienced legal help as soon as possible.

<![CDATA[Avoid these mistakes at your medical board hearing]]> tag:www.zdwlaw.com,2019:/blog//67471.3781475 2019-07-02T15:20:44Z 2019-07-02T15:19:44Z When you're a physician, receiving a notice that you're under investigation by the medical board can feel like the worst kind of intrusion on your life and your practice. If you've received such a letter, however, how you choose to handle the situation can ultimately determine the trajectory for your entire career.


]]> 1. Misunderstanding the board's concern


2. Failing to promptly respond


3. Providing inadequate records


4. Not having representation


<![CDATA[California doctors selling vaccine exemptions are facing trouble]]> tag:www.zdwlaw.com,2019:/blog//67471.3777679 2019-06-25T15:40:59Z 2019-06-25T15:39:59Z We've touched on this subject before and have warned that doctors in California who are capitalizing on the "anti-vaxx" movement by selling their signatures on exemption forms for children could be in trouble. That warning has now come to fruition in Senate Bill (SB) 276.

The proposed legislation would put any doctor who writes five medical exemptions or more per year under a microscope. If a doctor is found to have provided a phony medical exemption, that doctor would be charged with perjury. In turn, that would put the doctor's license and practice at risk.

]]> California is the first state to take this kind of action against doctors -- although it may not be the last. Numerous other states are beginning to follow California's lead by eliminating the ability of parents to exempt their children from vaccination schedules on the basis of religious, philosophical or personal beliefs. California ended such exemptions in 2015 after a major measles outbreak.

Since then, more parents have embraced the anti-vaccination movement, which attributes everything from autism to death to alleged contaminants in the vaccines. Some parents even believe that vaccines are the real cause of the diseases they're designed to prevent or they refuse to believe that childhood diseases like measles or chickenpox are dangerous.

These beliefs, which originated in a now-discredited medical study that used faux evidence, have largely taken on a life of their own -- mostly thanks to the movement's online propaganda. This has lead determined anti-vaxxers to "doctor shop" in states like California.

Some doctors are happy to help. One doctor, who charged $180 for a visit that would include a signed medical exemption, was responsible for one-third of all the exemptions filed in California.

This is unacceptable to the state and the Medical Board of California. In essence, the board sees the doctors as being willing to sell accommodation to parents at the expense of the safety of their actual patients -- the children involved.

It's never wise to give the board reason to question your loyalty to your patients or your ethics. If you find yourself in that predicament, seek experienced legal assistance.

<![CDATA[California Bar aims to revoke celebrity attorney's license]]> tag:www.zdwlaw.com,2019:/blog//67471.3773527 2019-06-21T07:28:25Z 2019-06-21T07:27:25Z "Celebrity" attorney Michael Avenatti, who is perhaps best known for his representation of actress Stormy Daniels and his abrasive style of commentary, is facing a new battle: He's trying to keep his license to practice law.

The California State Bar has moved to place the attorney on "involuntary inactive" status over allegations that he embezzled money from several clients by diverting settlement money that should have gone to them to his personal accounts. He's also accused of trying to extort millions from the major manufacturer Nike. All together, he's facing criminal charges that include embezzlement, extortion, wire fraud, conspiracy, identity theft and sending interstate communications in order to commit extortion.

]]> This case holds an interesting lesson for other attorneys because Avenatti currently maintains that he is innocent of all charges and has yet to be convicted -- but the Bar clearly doesn't operate under the same rules that attorneys are used to dealing with in the regular court system. In a normal court case, a defendant is "innocent until proven guilty." Where the State Bar is concerned, you can be guilty of a punishable offense even if you aren't convicted of an actual crime.

In this situation, the move to place the attorney in inactive status is seen as a preemptive measure with the likelihood that he will actually be disbarred -- which is even more serious -- in the future. The Bar is concerned with protecting not only the integrity of the profession but potential clients, so they often react harshly to even the appearance of impropriety on an attorney's part.

If you find yourself facing any kind of criminal charges, be aware that your license to practice could be at risk long before your criminal case runs its course. It's generally wisest to seek experienced legal counsel if you're accused of any kind of ethics violation.

<![CDATA[Common ways nurses risk losing their licenses]]> tag:www.zdwlaw.com,2019:/blog//67471.3772076 2019-06-19T15:41:36Z 2019-06-19T15:40:36Z In a typical day for a California nurse, any number of things can go wrong. From simple frustrations, such as a co-worker calling in sick, to a crisis like a recovering patient who suddenly takes a turn for the worse, you must be prepared to deal with matters in a calm and professional way. Sometimes, however, the crisis is personal and may affect your future.

Because you are busy helping others throughout the day, you may not consider that you have to protect yourself too. Your nursing license is on the line every minute that you are on the job and even when you are not on duty. As challenging as it may have been to obtain your license, you can lose it in one careless moment. It is important to know the most common ways you can jeopardize your license and face disciplinary action from the California Board of Registered Nursing.

]]> Your career on the line

One of the most common reasons why a nurse may lose his or her license is practicing under the influence of drugs or alcohol. If you have a substance abuse problem, there are options available for you to get the help you need, and these programs can often keep you from losing your license. However, issues involving the use or diversion of drugs can result in trouble for you, professionally and legally. Other factors that place your license in jeopardy include the following:

  • Falsifying patient records: Whether a careless omission or intentionally covering a mistake, falsifying patient charts can cost you your job.
  • Falsifying your credentials: This can include claiming to have the CE credits you need, using someone else's name because your record makes you ineligible for a nursing license or failing to tell your employer that your license is under suspension.
  • Neglecting or abusing your patients: If a patient claims you caused harm or failed to provide adequate care, you may have serious charges to defend against.
  • Making mistakes: If you are not feeling well, are fatigued or are distracted, you may not be on your best game at work, and this could have tragic consequences.

Unfortunately, your behavior when you are on your own time can also affect your job. The nursing board may be quick to take action against a nurse whose behaviors off the clock reflects badly on the nursing profession. If you are under investigation for any of the above actions or others, you should not face the disciplinary process without the aid of a legal professional who has experience and success dealing with administrative and licensing boards.

<![CDATA[Beloved California doctor battles for her license]]> tag:www.zdwlaw.com,2019:/blog//67471.3766974 2019-06-13T20:40:49Z 2019-06-13T20:39:49Z Is a California pain doctor -- much-beloved by her patients and respected by her peers -- really putting her patients at risk of death by overprescribing opioids to some and allowing others to be on dangerous combos of opioids and benzodiazepines?

That's what the executive director of California's Medical Board thinks -- and she filed a formal complaint alleging as much, among a slew of other allegations. As a result, the doctor is now fighting for her license and ability to practice -- with the support of many of her patients and others in the community.

]]> It's important to note that no patient is alleged to have actually died or suffered any harm under this doctor's care. She also has noted that many of her patients were "inherited" from other doctors who already had them on excessively high doses of drugs -- and she works with each of them individually to taper them off their medication. Otherwise, she says, many of them will (and have) resorted to buying drugs on the street -- which really does put their lives in danger.

She considers the actions of many other doctors unconscionable, who -- running scared of the reactionary measures being taken these days in the wake of the nation's drug problems -- have dumped pain patients without warning or drastically cut their pain medications without counseling or tapering the dose. Both the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) have recently stated that forcing patients to suddenly taper or discontinue high levels of opioids suddenly is something to avoid.

As for her own predicament with the Medical Board, the doctor says, "They were looking to put a head on a spike so they could claim they were doing something about the opioid crisis." She may very well be right, too. These days, every regulatory authority is anxious to prove that they're trying to stop the opioid crisis in its tracks -- so scapegoating may be a problem.

If you find yourself in a similar situation with your medical license at risk, talk to an experienced attorney about how to best defend your license and your future ability to practice.

<![CDATA[What drives most legal malpractice claims?]]> tag:www.zdwlaw.com,2019:/blog//67471.3761588 2019-06-06T22:00:43Z 2019-06-06T21:59:43Z A legal malpractice claim against you is one of the top things that could put your license in jeopardy -- so it's critically important to understand what is likely to bring that kind of trouble to your doorstep.

What are the common causes of legal malpractice claims?

]]> Conflicts of interest are the primary source of issues

According to the leading professional liability insurers for attorneys, one of the primary problems that brings malpractice claims is either a real or perceived conflict of interest on the attorney's part.

Seven out of nine of the insurers cited conflict of interest as either their first or second source of liability claims in 2018. Conflicts of interest are considered a breach of an attorney's duty of loyalty to the client -- which is taken very seriously by everyone involved.

Inadequate knowledge and representation are another

This is particularly true in areas involving business transactions, securities law and corporate law. The business world has become increasingly complex, and an attorney who takes on a task outside of his or her range of experience is likely playing with fire. Trust and estate law are also prone to a lot of complaints from clients. It's wise for attorneys working in these areas to remember that they are dealing with highly personal matters -- which means that their clients and others involved may be quicker to file a complaint or claim malpractice than others.

Before you accept a client, it's important to also make sure that you have the amount of time necessary to dedicate to his or her case -- and the right resources. And, as always, the longer you work in this area of law, the more possibility there is of conflicts of interest arising -- so it pays to be doubly careful.

If you have been accused of legal malpractice, make no mistake: The accusation could put your license to practice law in danger. Protect yourself by seeking out legal advice of your own as soon as possible.

<![CDATA[Testing accommodations, autism and the California Bar Exam]]> tag:www.zdwlaw.com,2019:/blog//67471.3754029 2019-05-31T01:38:39Z 2019-05-31T01:37:39Z A lot of people forget that autism encompasses a vast spectrum of capabilities -- and it isn't necessarily a barrier to achieving one's dream of becoming an attorney.

Just this past January, for example, a young woman with high-functioning autism was admitted to the Florida Bar. She's believed to be the first openly autistic person who has done so.

]]> She's not entirely alone. There are other attorneys and would-be attorneys on the autism spectrum. For many, the areas of law they specialize in are uniquely suited to both their limitations and their skills. Even though many autistic people suffer from problems with social interactions and processing delays, they can excel when it comes to focus and attention to detail.

So, if you're a law student with autism, what can you do to level the playing field once you get to the California Bar Exam? Asking for accommodations can feel intimidating, but it's important to remember that it's your legal right under the Americans with Disabilities Act (ADA).

If you have autism, when would testing accommodations such as extra time and a quiet space level the playing field for you when you take the bar exam? See if any of these scenarios sound familiar:

  • You compensated for your processing delay by simply working longer hours than your peers.
  • You constantly need to read the same material several times over in order to comprehend the meaning, even though you know all of the individual words.
  • You generally feel like you know more than you can demonstrate on a timed exam because it just takes you longer to transfer your thoughts to paper than it does others.
  • You experience significant anxiety during tests.

If you've experienced these problems in the past, you have every reason and right to ask for testing accommodations. If you're having difficulty getting approved, find out more about your legal options.

<![CDATA[Worried about the bar's moral character application? Get help]]> tag:www.zdwlaw.com,2019:/blog//67471.3744663 2019-05-26T11:57:04Z 2019-05-23T22:16:55Z Typically, new graduates from law schools get their applications into the state bar before graduation in May, take their bar exam sometime in July, find a job working in a law firm as an assistant while they wait to get their passing score and finally get admitted to practice by the end of the year.

But that isn't how it works for everyone. If there's something in your past that makes the bar question your moral character, you could be gearing up for an informal conference with the Committee of Bar Examiners. (If you feel more like you're about to face an inquisition, you can be forgiven -- because it definitely feels that way to many!)

]]> So, what kinds of things can put your moral character into question?

1. Contradicting information on your applications

The bar examiners may look at your law school application and compare it to the information you provided when you applied to the bar. Discrepancies can raise red flags and prompt questions. Even an accidental omission can be a problem.

2. Questions about your academic honesty

The recent scandal involving college admissions has highlighted a problem that can have a lasting impact on a young person's life. Any kind of falsification of credentials or academic dishonesty (like cheating on a test) can haunt your steps for years to come.

3. A criminal record of any kind

You can't fail to disclose a criminal record and hope the bar examiners won't notice. By the same token, your record may make it necessary to defend your moral character. This isn't an insurmountable issue, especially if you learned from your mistake -- but you may still suffer delays in your application over it.

4. Indications of untreated addiction or mental illness

The licensing process is designed to protect the reputation of all attorneys -- and protect clients. Naturally, it isn't acceptable to have an attorney practicing when there are issues with mental illness or substance abuse that aren't under control.

5. Financial irresponsibility

Those unpaid credit cards may not have seemed like a big deal back when you were a freshman in college -- but they can be a very big deal if you're applying to the California Bar.

If any of these situations sound familiar, don't go it alone. Talk to our office about how we might be able to help you get through the bar admissions process.