Does your attorney stay current with Texas laws and rules?

You need to hire a lawyer for some assistance whether it be for a case before the Texas Board of Nursing/BON, or a family law matter, or a real estate issue, or a criminal matter, or whatever.  How do you make sure you find an attorney that is current on laws or rules?

 I have just concluded two days of continuing legal education for Texas Administrative Law (this is the area of law involving regulatory agencies such as the Texas Board of Nursing/BON).  What I found surprising were how many lawyers that advertise that they represent nurses were missing from the conference roster.  There are two big conferences per year and a few smaller conferences to keep administrative lawyers up to date on changes to the law. Those lawyers could be attending the other conferences, but there are some attorneys that I have never seen at a CLE for administrative law.  This is an important point for not only administrative /BON cases but with any legal issue you find yourself in--you need to make sure the lawyer you are considering hiring is current in the area of law you need help with.  Each area of law has continuing education to keep the lawyers current and knowledgeable and you need to know if the lawyer you are looking at hiring is current.  There is not a listing of what attorneys attend which conferences out there for the public to look over. So, how do you ensure your desired attorney is up to date on changes in the law?  I can think of two ways:

 1.  Ask the attorney to provide a list of the conferences they have attended in the last 1-2 years.  Then review the list to see if the area of law you are interested in hiring the attorney for makes up at least part of the courses they have taken.  Laws and rules are constantly changing so you want someone who knows what is changing in order to keep your interests safe.

2.  Check to see if the attorney is Board Certified in that particular area of law.  Texas attorneys are required to obtain 15 hours of CLE plus 3 hours of ethics every year.  However, I am Board Certified in Administrative Law by the Texas Board of Legal Specialization and that means I have to obtain approximately 20 hours of CLE each year specific to Administrative Law because at the end of 5 years when it is time for recertification I have to show 100 hours of CLE specific to Administrative Law. This is the same requirement for any attorney who is Board Certified in a specific specialty.  There are several areas of Board Certification and you can find info at www.tbls.org.  

The requirements for continuing education is in addition to the specific knowledge an attorney has to show to become Board Certified in their specific area of practice.  So, if an attorney advertises that they are Board Certified you can be assured they are staying current in that area of law.

Every Nurse Needs Insurance!!

 I have posted before on why nurses should obtain malpractice insurance and the myths nurses are told that keeps them from protecting themselves.  Once again I have to present options to a client and because of the HUGE expense of fighting the BON, the nurse is unable to make the BON prove up the allegations with evidence.  Over and over, I shake my head with disgust that a nurse has to settle for discipline when the facts of the case do not support discipline.  Until nurses have the financial ability to fight the BON, the Board will continue to do what they want and continue to increase the level of discipline and to impose discipline when it is not warranted.  Please buy insurance and if you are not sure, read my earlier posts on exposing the myths.

The BON and Criminal Background Questions-the truth may set you free

If the BON asks a question on application/renewal paperwork, answer the question truthfully.  The area which trips up more Texas nurses is the criminal background question.  This particular question has undergone multiple changes and refinements based on what the Board heard back from nurses who did not understand the question.  When in doubt, answer the question "yes" rather than marking "no".  If you have been involved with the Police, arrested, jailed, posted bail, anything associated with the criminal system, you will most likely have to answer yes (the only exception is expungment or nondisclosure orders, see below).  The best option is to check with an attorney who is experienced with the Board, not your criminal attorney, not your best friend, not your co-workers or supervisors, and sometimes not even Board staff**.

The nurse should always be careful when submitting a statement regarding criminal offenses.  There have been cases where what the nurse submitted as a statement is what got them in trouble with the Board and not the actual conviction.  Also, there have been many cases when the nurse fails to inform the Board of a criminal incident and are disciplined for the failure to disclose; if the nurse had informed the Board no action would have taken place which is why the action is based on the failure to disclose only (there are some minor criminal offenses for which the Board will not take disciplinary action).

If you are in nursing school or entering school, do not wait too long to obtain the Board's decision on your criminal incident.  It takes a while for the Board to review the multiple applications they receive and a positive criminal background will delay the process.  Then you have to wait and calling or writing will not speed the process; hiring an attorney will not speed the process except an experienced attorney can review what you have sent to make sure you provided all required information thereby eliminating that delay; and having your Legislator/Dean/Parent call on your behalf will not speed the process.  So, it is better to plan ahead.

**Remember that just like any employer, the Board will have new employees and they may not understand what you are asking or they may be confused to what is required; so if the answer sounds too good to be true, check with an administrative lawyer experienced with the Board.

Expunged offenses, Sealing of Records/Orders of Nondisclosure
First, if you do not have an Order signed by a Judge which states "Order of Expunction/Expungment" or  something similar, then get a copy of the Order.  If you cannot get a copy of the Judge Order,  answer "yes" and state you believe it was expunged.  Too often nurses are confused regarding expungments and think there is an Order when in actuality they were eligible for one; or the nurse may confuse a dismissal as a expungment.  If you can get a criminal offense expunged, get it done NOW; expunged offenses make the licensure process so much easier.

The same can be said for Order of Nondisclosure or Sealing of Records.  The difference is that the board can look at the underlying offense to determine if this action(s) causes concern for the licensing/renewal of a nurse.

Juvenile Records
Juvenile records are not automatically removed from someone's criminal history, so don't forget these when answering criminal background questions.

Deferred Adjudication, Pretrial diversion 
 Deferred Adjudication and Pretrial diversion  cases are considered convictions by the Board even though in the criminal courts they are not convictions.    Be sure to tell the Board about them.

Dismissals, No filing of charges etc.

The Board asks about any ARRESTS, so even though there were no action taken by the criminal court, you still need to tell the Board.  Why?  There are times when a case is dismissed because it is covered by another criminal charge, but for the Board they want to know about each incident.

Pending Charges

If you were arrested, you should have already answered yes, but if that question or the actual outcome question did not catch your attention the pending charges question should.  In other words, most of the time you will answer "yes" if you have been involved with the Police/Criminal Court system.

NJP, non judicial punishment by military administration
NJPs are administrative decisions and are not a result of the showing of evidence/witnesses before a Judge or jury; the nurse is just informed of the decision.  These are determinations made by the commanding officer.  They are not reported to any criminal database since they are non-criminal, administrative decisions.  Because of the nature of NJPs, I have argued several times to the Board that these do not belong in the same category as criminal cases and if it were not for the honesty of the nurse the Board would not even know about the NJPs since they typically do not show up on DPS and FBI background checks.  However, the board continues to ask for information regarding the NJPs and has taken disciplinary action on a nurse based on what occurred (usually when the facts involve substance abuse issues, positive screens, assault, theft).

Misdemeanor, Felony
It is a Misdemeanor, not a Felony so the BON won't be interested, right?  WRONG!!  The Board asks about all arrests and convictions, not just felonies.  If you have pending charges and the arrest was for a felony, tell your criminal attorney to plead that down to a misdemeanor.  Why?  If you have a felony conviction (and remember felony deferred adjudications are considered convictions for the Board) the Board takes much harsher action including the potential for revocation, suspension or surrender.  Sometimes a plea of guilty to a Class A misdemeanor results in a better outcome for the nurse than a Felony deferred adjudication.  It is best to have your criminal attorney speak to your administrative attorney when determining the best plea outcome.

Conclusion
Each case can have unique aspects which require the review by an administrative attorney experienced with the Board.  Be proactive and don't wait to get the right advice.  I met with a nurse who was going to sign a disciplinary order and only had questions about some of the restrictions proposed by the BON.  When I reviewed the Order and the underlying arrest, I informed the nurse that the BON had no statutory support for the imposition of an Order.  I wrote a letter to the Board explaining why the Order was not valid and the complaint was quickly closed (the case was being handled by a new investigator who did not know the statute and it was not caught when it went through review).  So, I know I harp on getting legal advice by an experienced attorney but I have seen over the years the need for an attorney's involvement and the definite need for an attorney who has experience with the BON and I have seen bad outcomes when the proper advice is not obtained.