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.

Should you represent yourself before the Board of Nursing?

It has happened again, a nurse called wanting to know if it was safe to represent herself before the Board of Nursing. She thought that they would understand her side of the story and that although she did violate the law, they know how it is for nurses right now. She had discussed the incident with some co-workers and they told her that the Board was on the side of nurses. Thank goodness while looking on the Internet, she came across some information that made her pause and call me for further information because what she had been told was incorrect and potentially damaging to her nursing license.

There are lots of articles and blogs out there explaining the pitfalls of representing oneself before the Board. I just read Latonia Wright's blog entry about the same issue, "Are You Receiving Legal Advice from your colleagues at the water cooler?" Ms. Wright is an attorney representing nurses in Ohio, Kentucky, and Indiana. So, this issue is not just limited to one state. All nurses in all states should contact an experienced lawyer to assist them if there is an inquiry or investigation by the Board of Nurses. Please read my posts about how to pick an attorney and why a nurse needs an attorney if facing the Nursing Board.

Texas Nursing Board Attorney

I just spoke with a nurse that had hired a lawyer from her hometown to represent her before the Board. The attorney had never been before the Board, but assured the nurse that her that "it could not be too hard" and that he would have no problem. The disciplinary sanctions the nurse agreed to based on the advice of the attorney were not in line with what the incident warranted. It was obvious that the attorney did not understand what information must be presented to the Board. The attorney told the nurse to sign the Order (agreeing to the disciplinary sanctions)and that they could negotiate the terms afterwards. This was bad advice because it is difficult to modify an Order once it has been agreed upon. The nurse also stated that it was difficult to speak to the attorney and that when she did speak to him it was as though he did not remember her.

The nurse was distraught and asked how was she supposed to know the difference in attorneys. I explained that attorneys can specialize much in the same manner as doctors. While obtaining a law license enables a person to practice in any area, most attorneys focus on one or just a few specialties in order to gain expertise. Each area of law has constant changes due to case law, new rules, new regulations, new policies and new statutes being put in place, so attorneys must maintain their education. If an attorney focuses on too many areas of law, it becomes difficult to stay current in all of the areas.

Administrative law has another level of specialty in that lawyers also need to know the various state agencies, their procedures and their staff. Inexperienced lawyers frequently underestimate the importance of this knowledge. So, how does a nurse determine whether a lawyer is experienced? Look at the attorney's background. Look for a lawyer that is focused on the Board of Nursing. Ask what other areas of law they practice. Ask if they are Board Certified in Administrative Law. Go to the State Bar website and look up information about when they graduated and what area they indicate as their area of practice. Ask how many years they have been representing nurses before the Board.

Another area of distress for the nurse that I spoke with. She asked what I charged to represent nurses before the Board and she said that she paid $1500.00 more for the attorney she chose. Be an informed consumer and check out your attorney's credentials and chose wisely.

Do You Need an Attorney for the BON?

I just received a call from a nurse in another state. She asked if she needed an attorney to represent her before the Board of Nurses in her state. She said that she thought if she just told the Board everything that she would be okay. Just in the short amount of time she took to explain her situation, she brought up several areas that would cause the BON concern and several things she brought up had nothing to do with the allegations against her. She was also very angry and then started crying.

I explained that almost every case a nurse going before the BON (in any state) should at least consult with an experienced attorney and in most cases, the nurse should hire an experienced attorney to assist with the BON. I told her that the Board is not there to protect or assist her, but to protect the public. I told her that an attorney can watch out for areas that have nothing to do with the allegations, but that are issues the nurse should not bring up; that an attorney can help the nurse in understanding the process and the easiest way to navigate the system and address the allegations; and since the attorney is not emotionally involved in the situation, the emotions do not become an issue.

I gave the nurse a couple of names of attorneys that I knew represented nurses in her state and then told her that she could contact The American Association of Nurse Attorneys or her state Nursing Association or the State's Bar Association for a referral. I also told her that doing an online search can give her some information as well. I told her to be sure that the attorney she hires is experienced in representing nurses before the BON (look at my other blogs for more info on how to do this).

Just like the disclaimers on TV: DO NOT ATTEMPT THIS ON YOUR OWN!