DO'S & DON’TS OF INFORMAL SETTLEMENT CONFERENCES

 

This is a copy of the speakers Power Point presentation.

 

 

 

 

 

 

 

 

 

Moderator

WILLIAM E. HOPKINS, Austin

Thompson & Knight

 

JENNIFER S. KAUFMAN, Austin

Assistant General Counsel

Texas Medical Board

 

CATHERINE REYER, Austin

Associate Commissioner for Enforcement

Texas Department of Insurance

    

 

 

 

 

 

State Bar of Texas

19TH ANNUAL ADVANCED

ADMINISTRATIVE LAW COURSE

September 20-21, 2007

Austin

 

CHAPTER 10

 

 

 

This is a copy of the speakers Power Point presentation.

 

Dos & Don’ts of Informal Settlement Conferences

 

State Bar of Texas 19th Annual Advanced Administrative Law Course  September 19-20, 2007

 

Presented By 

 

William E. Hopkins (Moderator and participant)

       Thompson & Knight

 

Jennifer S. Kaufman, Assistant General Counsel

Texas Medical Board

 

Catherine Reyer, Associate Commissioner for Enforcement

Texas Department of Insurance

        

 

Don’ts

   Or, How Not to Win Friends and Influence People (that might take disciplinary action against your client)

 

11. Don't feel the need to fill the silence.

 

-Panels have a number of cases to review in a day and a lot of information to consider in each case, as such, brevity is important.  Often panels are silent because they are considering information.  While panels want to hear all of the relevant information, speaking just to fill the silence can be annoying and self-destructive. 

 

-Be informative, but concise.

 

10.  Don’t ignore the information provided in Agency notices.

 

Notices are sent for a reason

 

Should use issues referenced in notices to help frame topics for discussion with client

 

If settlement fails, these notices provide a roadmap for future hearing

 

Listen to what regulators are saying during conference for tips

 

9. Don’t be afraid to tell the client the truth about their case.

 

When providing analysis about the strengths and weaknesses of your case, you cannot be hesitant to tell the client the truth about their position and their potential sanction.  It can help take the sting out of it and can put the client in the right frame of mind when it comes to negotiating a settlement later on.

 

8. Don’t lecture the regulators after a decision has been made.

 

Given the nature of the proceeding, licensees are never in a position to lecture or talk down to the panel.  Attorneys should not feel compelled to do so for their clients either.  There is a time to express disagreements with Agency policy or rules, but once a decision has been made, don’t argue the “intelligence” of the decision.

 

7. Don’t submit materials at the last minute.

 

Some agencies have strict rules on when materials may be submitted to the panel for consideration.  Know those rules and adhere to them.

 

It would be tough to explain to a client that a key document cannot be considered because you failed to submit it to the agency on time.

 

6. Don’t Assume that all Agency ISCs are the same

 

Some agencies have different procedures for ISCs, so it is very important that you read the specific Agency’s rules governing ISC very carefully.

 

Your client will expect you to know the procedure cold, so do not allow yourself to be surprised based on a lack of knowledge.

 

5. Don’t ignore Agency requests for information.

 

If the agency has requested additional information, it is usually to either confirm or refute a specific allegation

 

Ignoring these requests only further creates the image that your client may have done what has been alleged.

 

4.  Don’t go over staff’s head.

 

If there is a recognized chain of command to the investigations process, avoid stepping over someone to try and make a point or assert your power.  It rarely works to your advantage and you will be “remembered” for your actions the next time you appear before the agency.

 

3.  Don’t play dumb.

 

There is rarely, if ever, an advantage to the client or the lawyer pretending that they were not aware of some aspect of the case or procedure.

 

Not only is it not persuasive, but it might provide further evidence to the panel that your client should be sanctioned.

 

2.  Don’t “Go Political” to resolve your case.

 

There is rarely an advantage to enlisting the help of lobbyists, legislators, or other outsiders as advocates.

 

Usually, these people will not have a firm grasp of all the facts and can do way more harm than good by alienating the agency staff.

 

No one likes the “Power Play.”

 

1.  Don’t lie.

 

Agencies have significant resources to discover the truth

 

Often, the lie is easily discovered

 

Often, the penalty for lying is worse than for the underlying offense

 

DOs

 

10.  Be an advocate, not a fighter.

 

The Board understands that defense counsel has a job to do and appreciates those attorneys who are assertive and make intelligent arguments.  However, no agency appreciates attorneys and clients being rude, argumentative and confrontational.  All participants are entitled to respect.  Bad decisions come from angry people. 

 

9. Be able to back up your Arguments. “Just the Facts.”

 

It is often said, in health care professions, “If it isn’t documented, then it wasn’t done.” 

 

“He said, she said” situations often work against the licensee, and if the licensee is going to make assertions those statements need to be corroborated by others or by evidence.

 

8.  Dress appropriately.

 

Professionalism is reflected in not only what you say, but how you present yourself and your client

 

7. Admit errors.

 

Those licensees who do the best before the Board acknowledge their mistakes and explain how they have learned from them and taken corrective action.  If you have a client that cannot admit to error, then he or she should at least acknowledge ways that their practice can be improved.

 

6. Prepare your client.   

 

The panel will want to hear mostly from the licensee and not from the lawyer, so it is important to counsel clients on how to keep on point and how to best present their case.  The panels are well prepared and expect the licensee to be ready as well.  Licensee should be prepared to talk about the case, not their CV.

 

5. Project a positive attitude

 

Your client may have the best training and be the most competent professional in their field, but no one is perfect and a licensee who isn’t just a bit humble will come off as arrogant and will antagonize the Agency staff and Board members.

 

4.  Come to the table early.

 

You should be willing to “lay your cards on the table” so that everyone is working from the same point

 

No value to secrets or hiding

 

3.  Know your client.

 

These ISC procedures are very different experiences for most clients

 

Understand your client’s strengths and weaknesses and help them develop a presentation that accents strengths and minimizes weaknesses

 

2. Make sure appropriate resources are invested in the case.

 

Know when your client’s case may require the use of expert witnesses or outside testimony and educate the client on the value of doing so, despite expense

 

In some instances, educate the client that fines/penalties assessed by agreement are likely lower than their exposure if case goes to hearing

 

1. Fulfill promises.

 

Despite the strength of the desire to settle cases favorably, attorneys and client’s must be very careful regarding what they promise in return for a good deal.  If you promise to do something, you will be held accountable for not fulfilling your promise.