Probation is one of the most common disciplinary measures that professional licensing boards and commissions may take when adjudicating an Administrative Complaint. Ind. Code § 25-1-9-9(a). When a license is placed on probation, the licensee is permitted to continue practicing subject to certain terms and conditions which must be fulfilled before seeking withdrawal of the probation.  Common terms of probation include ongoing education, payment of fees and fines, and quarterly reporting by the licensee or their employer. Traditionally, professional license probation orders impose an “indefinite probation” period of not less than a set number of months or years.

Filing the Petition

Probationary periods are often “indefinite,” thus there is no automatic reinstatement of the professional license. It is the licensee’s responsibility, or their legal counsel’s, to petition the board or commission regulating the professional license to withdraw or modify the probation and seek to have the license returned to “free and clear” status.

After a petition is filed, the board or commission will set a hearing on the petition to determine if withdrawal or modification of the probation is warranted. Even where the licensee has complied with all express terms and conditions of the probation, there is no guarantee that the modification or withdrawal of a probation will be granted. The licensee bears the burden of persuading the board or commission that they have not only complied with all terms of the probationary order but also that they have remedied all issues or deficiencies outlined in the Administrative Complaint. I.C. § 25-1-9-9(b).

Preparation

Preparation with counsel for the hearing on a petition for modification or withdrawal of probation is key. The licensee’s counsel can:

• Confer with the Deputy Attorney General assigned to the underlying case and determine if the State has any objection to the Petition to Withdraw Probationary Status;
• Prepare evidence demonstrating that the licensee complied with all terms of probation; and
• Ensure that the licensee is prepared to testify persuasively at the hearing and assure the board or commission that the misconduct that gave rise to the Administrative Complaint will not recur.

It is crucial that the licensee read and understand all rules and statutes the board or commission determined the licensee violated. At the hearing, the licensee will be expected to discuss those rules and statutes and describe the changes made to their practice to maintain compliance with contemporary expectations of professional practice. Defense counsel can prepare the licensee to testify at the hearing with mock hearing questions related to pertinent rules and statutes.

Hearing

At the hearing, it is the licensee who will turn their careful preparation into persuasive testimony and convince the board or commission to withdraw or modify the probationary status of their license. Although defense counsel cannot testify at the hearing, counsel can increase the likelihood that the board or commission grants the petition for withdrawal or modification of a probation by:

• Providing an opening argument setting the basis for withdrawal or modification of the probation;
• Introducing evidence demonstrating compliance with all terms of the probation order;
• Objecting to, and limiting the impact of, any negative evidence presented by the Deputy Attorney General;
• Framing questions from the Deputy Attorney General into plain language or to be more like predicted questions identified during preparation sessions with counsel; and
• Objecting to questions from the Deputy Attorney General that go beyond the scope of the Administrative Complaint and probation order.

With proper preparation, compliance with all terms of probation, and representation of defense counsel, a licensee can maximize the probability that the board or commission grants the petition for modification or withdrawal of probationary status – allowing the licensee to return to “free and clear” practice.

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Posted on September 3, 2021