This is not a joke.  This is a good thing.  Beginning in the compliance periods with deadlines in 2015 all Pennsylvania lawyers will be required to obtain 2 ethics credits during each year in order to maintain our licenses.  Our total CLE hours will remain twelve per year.  These changes were adopted by Regulation changes by the Pennsylvania Continuing Legal Education Board this month.  In addition, the Pennsylvania Supreme Court has by Order changed Pa.R.C.L.E. Rule 108(e) to provide that Lawyers may obtain six credits via alternative means (rather than live in-person) rather than four.  This allows half the CLE credits to be obtained through distance learning and/or computer based education.

The CLE Board Chair Kenneth Argentieri states "We hope that these changes will help lawyers to better serve their clients and the administration of justice in our Commonwealth.  Ethics and professionalism is the heart of what we do."

As an ethics instructor I wholeheartedly agree.  Although I do not agree with the lawyer jokes, and I am of the opinion that lawyers are more ethical than we are given credit for, more ethics credits will not hurt anyone and will hopefully help Pennsylvania lawyers avoid future ethical issues.

If you have any questions about ethics or are in need of a presenter please contact me at jmcguire@c-wlaw.com.
 
 
Well almost.  Some Pennsylvania licensing boards have that power now, but it was unclear if others did.  Therefore, the law is being amended.  House Bill 261 has passed both the House and the Senate and, as of January 15, sits on Governor Corbett’s desk for signature.  All indications are that he will sign this bill.   Once signed, the bill will go into effect sixty (60) days later.

The bill will provide the authority for each licensing board to deny, suspend or revoke any license for failure to pay any fines, interest, or costs assessed as a result of a disciplinary proceeding.  It also provides that if the amount due exceeds one thousand ($1,000.00) dollars and remain unpaid the board has the ability to enter the amount as a civil judgment against the individual or corporate entity.  This judgment remains of record and does not need to ever be revived.  The board has up to sixty (60) months to enter such a judgment.  Further, once paid the board has up to ninety (90) days to satisfy their judgment.

In my opinion, this is good fix because certainly the intention has always been to be able to discipline a licensee for failure to pay their fines. I do not see the requirement for entering the fine as a judgment but generally this should never be an issue for a licensee.  I have been able to negotiate payment terms in cases where payment was difficult.

If you have any questions about licensing please contact me at jmcguire@c-wlaw.com.
 

Note:  The Governor signed this bill on February 4, 2014.
 
 
Licensed professionals need to give serious consideration as to whether they shall enter a Nolo Contendere Plea.  There are serious implications on ones ability to continue to practice their profession.  Most if not all of the licensing statutes allow the Licensing Board to revoke, suspend, limit, or otherwise restrict a license.[i]
             
The Latin phrase Nolo Contendere means “I will not contest it.” The idea behind a plea of Nolo Contendere is that the criminal defendant will accept in the criminal court the charges as presented and subject themselves to the appropriate punishment as determined by the court.  However, it is also supposed to only have that effect in the criminal court.  The Nolo Contendere plea is not supposed to have any impact or relevance outside of the criminal court, particularly in civil actions.  
              
The Pennsylvania courts have determined that the professional licensing boards are “watchdogs” of the professions and therefore are empowered to maintain the high standards, which the people of this Commonwealth have a right to expect from their professionals, and therefore, the courts have held that the Boards have the ability to admit a certified copy of the docket entry of a plea of Nolo Contendere at an administrative hearing, and that a Nolo Contendere plea is evidence of an admission of guilt of a crime.
             
It should be noted that there are lots of reasons why an individual might plead Nolo Contendere in the criminal setting, including the high cost to defend the criminal case, the emotional toll of a criminal trial, and the risk of a guilty verdict and the attendant jail time that would ensue being some of the  most common.
             
While the courts have held that the Nolo Contendere plea is admissible in the administrative hearing, they have also held essentially that this Nolo Contendere plea is simply a presumption of guilt and leaves the door open for the professional to submit evidence that they are not guilty.  Obviously, having a rebuttable presumption is better than facing the licensing board with a guilty plea or criminal conviction, but the burden of establishing innocence may be difficult indeed.  Remember that your audience will ultimately be a licensing board and will initially be the prosecutor and possibly hearing officer, all of whom are likely to have never faced criminal charges and who might find it difficult to believe that a person would plead Nolo Contendere or, in their minds, essentially a guilty plea, if they were not guilty.  The reality of the situation will be that it is most likely that even an innocent person who pleads no contest, will have some disciplinary action taken upon their license.
             
It is important for any professional faced with a criminal charge to consider the effect of a Nolo Contendere plea.  Obviously, the primary focus when facing criminal charges is going to be to maintain one’s freedom and avoid jail time.  However, as a professional, you must keep in mind the effect the criminal charges will have on your ability to practice your chosen profession.  Also, please keep in mind that most criminal defence attorneys will not understand the implications of a Nolo Contendere plea upon a professional license.  The reality is that most criminal defense attorneys do not handle professional licensing matters.  
              
Ultimately, my advice is to weigh all your options and understand the potential implications of a Nolo Contendere plea before you enter it. It may very well be the right decision to make, but understand the impact it could have upon your professional license.
     
[i]For example, see the Pennsylvania Accountancy Law, Section 9.1 (5), which states that a CPA can be disciplined for entering a plea of Nolo Contendere for a felony under any federal or state law or the laws of any foreign jurisdiction.  
 
 
Even if you haven’t taken an ethics course you already know that it would be unethical to lie about having taken an ethics course.  The New Jersey Board of Accountancy collected $4.2 million in penalties from CPAs last year who apparently did just that.  That’s right $4,200,000.00!  The New Jersey Star Ledger reports that this amount exceeded the “total amount of penalties leveled by all the state boards in each of the last five years.”  The largest fine assessed was $8,000, so there were a lot of CPAs who failed to obtain the required CPE.

In New Jersey, CPAs are required to take a state specific ethics course every three years.  Like many states New Jersey usually selected about 10% of renewal applications to conduct an audit of all CPE courses.  Instead, last year they elected to compare the list of attendees at the required ethics course from 2006 through 2008 to the list of CPAs who renewed as of January 1, 2009.  Everyone who filed a renewal but had not attended the state specific course was audited for all courses.  While I’m certain some of these CPAs attended a non-state specific ethics course and believed that was acceptable there was a disturbingly large number of CPAs who didn’t take any courses.  That means these CPAs lied on their applications not only about taking the ethics course but also about taking the required 120 hours.  
 
Not surprisingly the New Jersey Board has indicated that it will conduct another audit for the January 1, 2012 renewals and it should come as no surprise that other states and other professional boards are considering conducting audits of their own.  $4.2 million is certainly an incentive for any state.  New Jersey has already indicated that they may more vigorously review doctors, nurses, pharmacists and psychologists. 

CPAs are generally considered to be the most honest and trustworthy profession, so, if they have trouble meeting their ethics requirements the other professionals are as well.  Hopefully, the lesson learned here is that every professional should take their CPE requirements seriously.  If anyone has any questions about their requirements or has a licensing issue please contact me.  And remember to contact me before meeting with an investigator.

 For CPAs, please remember that in Pennsylvania, your next renewal will be on January 1, 2014.  You are required to obtain at least 20 CPE credits each year during the two year cycle and 80 hours total during that period. Although the regulations still have yet to be passed, the Board has indicated that it will be requiring 4 credits of ethics for the upcoming renewal.  Remember, it is also your responsibility to make certain that the CPE credits you have taken are approved for credit in Pennsylvania.  Your provider should be able to give you this information.

 All other professionals have renewal deadlines and CPE requirements which must be followed.

 While it remains to be seen if Pennsylvania will increase its CPE audits and prosecutions,  you can avoid any concern about an audit or prosecution if you simply follow the regulations of your profession.

 
 
Not that long ago I blogged about the new requirement for dentists to carry professional liability insurance.  Now Pennsylvania has added prosthetists, orthotists, pedothorthists and orthotic fitters to the list of medical professionals required to maintain professional liability insurance.  In fact, these professionals are now under the oversight of the Pennsylvania State Board of Medicine [Board] and will require licenses by 2014.
 
Governor Corbett signed HB 48 of 2011 into law on July 5, 2012.  This bill was supported by the Pennsylvania Orthotics and Prosthetics Society [POPS], Pedorthotic Footwear Association [PFA], National Orthotic Manufacturers Association [NOMA], the Pennsylvania Orthopedic Society [POS] and the Hospital and Healthsystem Association of Pennsylvania [HAP].  With its passage, Pennsylvania joins more than a dozen states including Ohio and New Jersey in regulating the practices of prosthetics, orthotics and pedorthotics.
 
The bill, as passed, is poorly written.  This is probably partially due to edits during the legislative process and the fact that part of it was standard language drafted on a national level which was cut and pasted into the Act.  Representative Scavello’s press releases indicate that beginning in 2014, in order to be licensed as a prosthetist and orthotist an individual will be required to have at least an associate’s degree in prosthetics or orthotics and an additional two years of education or a bachelor’s degree and meet a work experience requirement that is two years or 3,800 hours of patient care.  Further, each licensee will need to pass an exam and other requirements as set by the Board.  Pedorthotists and orthotic fitters must complete a board approved entry-level education program specific to their field and have a minimum of 1,000 hours of supervised work experience.   
 
There is also a requirement that a licensee must be of “good moral character”.  Further, an applicant cannot “be addicted to alcohol, narcotics or other habit-forming drugs.”  Nor can the applicant have a conviction for a felony under the Controlled Substance, Drug, Device and Cosmetic Act.  Please contact me if you need assistance navigating the application process.  Once granted the license must be renewed every two years.
 
There is a grandfather provision that will allow current practitioners to obtain a license as well. Current practitioners have to apply within two years from the effective date and must meet other criteria which are unclear from the language of the statute as passed.  Representative Scavello has indicated that they must either be holding a current national certification or have been in continuous practice for three years to qualify.  However, the statute also lists requirements for education and training and actually requires both the certification and three years of experience.
 
Finally, under this act, all licensees are required to maintain one million dollars of professional liability insurance. 
The statute requires the Board to establish appropriate regulations within eighteen months and I have been told that the Board has started to draft regulations.  Hopefully, the statute will be amended and we will have regulations that will clarify the licensing requirements.

If you need any licensing advice or advice interpreting this statute pl

 
 
           
On June 22, 2012 Governor Corbett signed Act 65 into law [SB 388].  The law goes into effect August 21 (60 days after it was signed).  This law amends the Pennsylvania Dental Law to require dentists licensed in Pennsylvania to purchase professional liability insurance. Pennsylvania is one of only a few states to require dentists to maintain this insurance.
                 
The law requires limits of at least one million dollars per occurrence and three million dollars per annual aggregate. However, it does allow dentists to be self insured.  Until the regulations are passed, it is unclear exactly what proof of assets or solvency will be required to satisfy the self insured status.  
                 
What is required to under the law is to maintain insurance and provide proof of insured status upon license renewal.  In order to be compliant with the new law it is important that dentists have insurance in place on or before August
21.  The Pennsylvania Dental Board has the ability to refuse, revoke or suspend a dentist’s license for failing to
comply with this requirement.
                 
Commissioner Katie True of the Bureau of Professional and Occupational Affairs [BPOA] testified before the House Insurance Committee that requiring insurance would be beneficial to the public.  The Pennsylvania Insurance Department also supported this law. In Pennsylvania other professionals that are required to maintain professional
liability insurance in order to maintain their licenses include doctors, optometrists, chiropractors, nurse-midwives and physician assistants.  The question remains whether the BPOA and/or Insurance Department will push for the same or similar legislation for other professions or occupations.  So far the requirement to maintain insurance is limited to the medical boards although it is interesting to note that attorneys must disclose to their client the fact that they do not maintain a certain level of insurance and this information is available online if you search an attorney's license status.

For now, we'll just have to wait and see whether BPOA attempts to expand the insurance requirement to other Professional or Occupational licensees.
 
 
Mike Colgan, the new Executive Director and CEO of the Pennsylvania Institute of Certified Public Accountants, has recently brought an issue to my attention.  The issue is that when CPA’s provide documents to the State Board of
Accountancy during a license investigation some of those documents are being made available to the public.  This
is despite the fact that some of these documents may be protected by the accountant client privilege.  Without going through all the prosecutions by the Board, there is no way to know how often client documents are being made available to the public.  However, I looked at nine of the most recent licensing violations.  Of those nine, three of the consent orders had what appeared to be confidential client documents attached and therefore available to the public. 
Of these three, only one of the CPAs (or their attorney) thought to have the documents redacted with their client’s identifying information removed.
 
In Pennsylvania the CPA Law provides an accountant client privilege.  However providing documents to the Board in a licensing investigation is an exception to the privilege.  Therefore, ethically a CPA can provide any documents requested by the Board.  There is no guidance in the statute as to what the Accountancy Board can do with them. 
It turns out in some cases they attach them as exhibits to the consent orders and make them available to anyone who asks to see the disciplinary history! While there is no ethical problem with this for the CPA it certainly has the potential for a client problem if the client discovers that their tax returns or audit paperwork are available to the general public.  Certainly if the client is harmed in some way by this information leaking out they would have a cause of action to sue the CPA.  The client could claim that this was a foreseeable result of the CPA releasing this information without any protection to the client.  Without addressing the merits of such a claim, which I believe should be vigorously defended, no CPA wants to be sued in the first place or have to deal with a lawsuit, the costs or the aggravation.
 
There is a simple fix. When asked by the investigator or any representative of the Board to provide any client documents, redact all client identifying information.   Name, address, social security or tax identification numbers and phone numbers all should be removed.  They can be whited out or blacked out with a permanent marker.  It will be obvious that information was removed and that’s ok.  Don’t remove anything other than the client identifying information.  I even recommend that when you provide the documents to the Board your cover letter indicates that you have removed all client identifying information, and if there is anything you missed, that information should also be removed before any of the documents are made available to the public.
 
The Accountancy Board should have no problem with this.  If they do you should contact an attorney before turning over any documents and your attorney should be able to convince them that the redacted documents will serve their
purposes.  (Frankly, your license is too important not to have the advice of counsel in a license investigation or
prosecution anyway.)
 
 While I don’t know if this may be an issue for any other profession with a recognized privilege but I can’t imagine that any of the medical boards are publishing patient’s medical records so it is unlikely.  However, keep in mind that if your profession has a privilege you can (and probably should) always redact the client identification information unless it somehow relates to the prosecution’s case.  
  
At this point the PICPA will attempt to address this issue with the Accountancy Board, its counsel and the prosecutors in an effort to make certain that they all understand that this is a serious issue for CPAs.  We will try to stop this practice of making unredacted documents available even in the circumstances where the CPA
fails to redact the information. Hopefully, a little education will go a long way to alleviate this problem.  
 
 
So I sat down to write this blog intending to make it a complete list of the tasks of all volunteer board members.   Only as I started to write this I realized that although I know many of the tasks from having served on volunteer boards and representing non-profits and associations, every board is different and I can’t possible know all the tasks of every board.  I hope I know most of the tasks and even the most important tasks but please tell me what my list is missing and I’ll update this as additional information is obtained. So please comment so that your thoughts can be shared with everyone.  (Or email me privately and I’ll add your comments anonymously.) 

In no particular order, here are the tasks for board members that I’ve compiled:

Strategic Planning
Policy setting
Fundraising
Marketing
Oversight of programs (often including education of members)
Oversight of management (often confused with micromanaging)
    This can include the hiring of an executive director or chief officer.
Investments
Cash management
Risk management

 What did I miss?
 
 
So you’re a board member. . .  Now what?

Hopefully, there is a robust orientation that will help you to understand the commitments and expectations you just agree to meet.  Whether or not there is there are some common things that should help any board member.  Here are three items you should consider.

First you should know that attendance is generally required.  Usually that attendance is in person but as technology expands and improves some board allow attendance via conference call or video conference.  You should find out how many meetings and plan to attend at a minimum the majority of these meetings.  You will want to know if you can attend other than in person and if you are not in person if you may still fully participate, vote and if your vote counts.  You need to understand the time commitment so you can be certain you can fulfill that commitment.

Second you need to understand the role of your board and thus your role as a member.  Depending on the size of the organization and particularly the size of the staff of the organization, some boards are hands on in running the activities while many and perhaps most serve as the general steering committee for the overall direction of the organization.  In some boards there may be an expectation that you will serve as a good will ambassador and/or fundraiser for the organization.  However, you will want to know early on whether you are expected to manage or micromanage the organization.

Finally, in any board you must remember that you are responsible for the health, well-being and sustainability of your organization.  This is true no matter the organization whether a trade association or non-profit raising funds to fight cancer or any type of association.  The organization and you as a board member have a responsibility to see that the funds of the organization, no matter the source, are used for the express purposes of the organization.

There are numerous other items you may want to consider.  You should familiarize yourself with the policies of the organization particularly as it relates to conflicts of interest.  You will also want to know the term of your service and whether you may serve additional terms.  Finally, there may be additional board member training that is available to you through your association.  There are numerous resources available online both free and at some cost. 

 
 
So you’re a board member. . .  Now what?

Hopefully, there is a robust orientation that will help you to understand the commitments and expectations you just agree to meet.  Whether or not there is there are some common things that should help any board member.  Here are three items you should consider.

First you should know that attendance is generally required.  Usually that attendance is in person but as technology expands and improves some board allow attendance via conference call or video conference.  You should find out how many meetings and plan to attend at a minimum the majority of these meetings.  You will want to know if you can attend other than in person and if you are not in person if you may still fully participate, vote and if your vote counts.  You need to understand the time commitment so you can be certain you can fulfill that commitment.

Second you need to understand the role of your board and thus your role as a member.  Depending on the size of the organization and particularly the size of the staff of the organization, some boards are hands on in running the activities while many and perhaps most serve as the general steering committee for the overall direction of the organization.  In some boards there may be an expectation that you will serve as a good will ambassador and/or fundraiser for the organization.  However, you will want to know early on whether you are expected to manage or micromanage the organization.

Finally, in any board you must remember that you are responsible for the health, well-being and sustainability of your organization.  This is true no matter the organization whether a trade association or non-profit raising funds to fight cancer or any type of association.  The organization and you as a board member have a responsibility to see that the funds of the organization, no matter the source, are used for the express purposes of the organization.

There are numerous other items you may want to consider.  You should familiarize yourself with the policies of the organization particularly as it relates to conflicts of interest.  You will also want to know the term of your service and whether you may serve additional terms.  Finally, there may be additional board member training that is available to you through your association.  There are numerous resources available online both free and at some cost.