Case library / Convictions, and the duty to report one
Charged for conduct that was never prosecuted
In short
Revocation stayed. Three years of probation
$5,083Two convictions, and then two more causes for incidents that produced no conviction at all.
The Board does not need a conviction, and it does not need a subdivision either.
What happened
Convictions for disobeying a court order and for criminal threats.
The accusation then added independent causes for unprofessional conduct based on a petty theft incident and a sexual battery incident that were not themselves convictions.
What it was charged as
The two convictions.
Unprofessional conduct, charged directly for the unprosecuted incidents.
The outcome
Revocation stayed. Three years of probation.
OAH No. 2023070232
$5,083ordered in cost recovery under B&P §125.3What the rule actually says
The opening words of §4982 are “unprofessional conduct includes, but is not limited to, the following.” The list of subdivisions is not exhaustive, and the Board can and does charge conduct directly under the chapeau where no subdivision fits and no conviction exists. A dismissed charge, a case declined by the district attorney, or an arrest with no filing is all still available to the Board on its own evidence and its own standard of proof.
Discussion
Analysis, not part of the decision
There were two convictions here — disobeying a court order, and criminal threats. What makes the case instructive is the two additional causes: unprofessional conduct based on a petty theft incident and a sexual battery incident that produced no conviction at all.
The opening words of §4982 are “unprofessional conduct includes, but is not limited to, the following.” The list of subdivisions is not exhaustive. The Board can and does charge conduct directly under that chapeau where no subdivision fits and no conviction exists, proving it on its own evidence to the administrative standard rather than the criminal one.
So a dismissed charge, a case the district attorney declined, or an arrest with no filing all remain available to the Board. A criminal outcome in your favor ends the criminal matter. It does not end the administrative one, and the two proceedings answer different questions on different standards of proof.
Where insurance reaches, and where it does not
The gap this exposes is that criminal defense counsel and licensing defense counsel are different jobs. A plea that is excellent criminally — a reduction, a diversion, a no-contest plea — can be terrible for the license, because the Board is not bound by the disposition. Board-defense cover pays for the second lawyer, and the time to instruct them is before the plea, not after.
What would have changed it
- Tell your criminal defense attorney you hold a license, at the first meeting, and get a licensing attorney involved before any plea.
- Do not assume that a charge that goes away goes away.
Questions
For a law and ethics seminar, or for yourself
- Contrast the burden of proof in a criminal prosecution with the burden in a BBS disciplinary proceeding. What follows for a licensee facing both?
- Is there anything objectionable about disciplining a licensee for conduct that was never prosecuted? Argue both sides.
- Your criminal case is dismissed. What do you now owe the Board, if anything?
Source. This write-up is drawn from the signed public decision in the case number above. Names, cities and employers have been removed — why. To pull the original, open the Board's quarterly newsletter archive, find the issue covering January 18, 2024, and match the case number in the Formal Disciplinary Actions section. Not legal advice.
