Hiring An Attorney Who Is Tough, Smart & Knows the Law

Samuel Eugene SpitalDo you or someone you know have a professional or occupational license and facing an investigation or charges by the State of California? Are you seeking a professional or occupational license? Have you considered your future endeavors and how the potential outcome of the present situation can adversely impact the choices you may later have and/or want to make?

Whether it appears to be only a call or letter from the government, you want to be certain as to your rights and possible liabilities, and you want a lawyer who is tough, smart and knows the law. Clearly, anyone who has had such an encounter knows what might seem an innocent and non-adversarial communication from the government or an investigator can be just the opposite. It is not about “telling the truth because you have nothing to hide.” Rather, what you say can be misinterpreted and might constitute an admission against your interest (in law – it can be construed as a confession).

Hence, whether you are applying for a license or have one, the risks as well as rewards can be substantial. If you have received an Accusation by the Board or Agency that issued your license or you are planning to apply for a state license or have received a denial letter, it is indisputably a defining moment in your career and, therefore, should be treated as a critical event that justifies obtaining truly experienced counsel.

The intent and scope of legal services should be to provide you with a full and proper evaluation of your case, as well as to afford you legal advice as to your rights, as well as your legal, and financial (and perhaps emotional) exposure, including the alternatives that are available. In addition, to protect you from an otherwise powerful state government and on your personal behalf to level the playing field, you also want an attorney who will fully assess and rightfully advance your legal rights.

A prominent attorney is able to maintain such a position by him/her having integrity, as well as being fully experienced and highly skilled in presenting thorough legal arguments that are not only comprehensive, but most importantly are both in writing and legally sound. This  takes more than an idle analysis, but rather proper research; detailed planning of the strategy in a case; it involves an exhaustive review of all of the facts; a wise and accurate evaluation of the records; correctly interviewing lay and knowledgeably conferring with expert witnesses who are highly regarded in the profession; eventually, the proper foundation and scrutiny must be accomplished to truly level the playing field for the skilled and experienced lawyer to be in a position to confer with the prosecution side, persuasively argue and present as well as to negotiate and achieve a winning solution.

If a winning result is what you want, you should not expressly or implicitly place a constraint on the number of hours and time that your lawyer deems appropriate to strengthen your defense and develop a compelling offense. Clearly, you can’t afford to not do this if you are truly motivated and honestly desire to obtain a favorable outcome.

In the end, when you consult with and retain a lawyer who is tough, smart and knows the law, you are less likely to look back and wish you had done so. And, there are readily available tools to help you evaluate the criteria, such as percentage of their practice devoted to Administrative Law, years in practice, prior specialized experience, their proven success, and most importantly what other clients and leading attorneys have consistently said in the past and continue to say in the present about the lawyer you select. And, if you ultimately choose price as an overriding factor (paying the lower of retainer fees to a lawyer), it is more likely he or she will spend less time on your case. For a free consultation, call now 619.583.0350 or send an email to Sam Spital, Managing Lawyer, with a few ranges of time for him to call back. You have nothing to lose, there is no hassle, you will come away with more insights and, therefore, believe there was and is “everything to gain.”

What To Do If You Get A Call or Letter From The Government?

If you receive a telephone call or a letter from the Government, it is extremely important that you obtain experienced legal counsel at once. It may be possible to “nip it in the bud” during the pre-file and/or investigative stage. This is why it’s so important to seek legal advice in the early stages of a case. Do not be naïve to think you can handle it yourself and/or any lawyer can do so on your behalf.

Some lawyers handle a huge caseload, have their junior associates and paralegals perform the work, and may be best described as an assembly line or cookie cutter law firm. You deserve an attorney who will prepare a proper strategy that is accompanied by comprehensive written legal and factual arguments that address the issues.

It is noteworthy that there are several possible outcomes of an investigation, including the following:

1. Closed, the complaint is found to be “unsubstantiated;”
2. Closed, the complaint is found to be “inconclusive;”
3. Closed, the complaint is found to have merit but insufficient evidence to prosecute given the burden of proof and likelihood of prevailing;
4. Closed, an investigative fine is imposed;
5. Referred to the local District Attorney, referred to the State of California Attorney General for the filing of an Accusation, civil complaint and/or an Interim Suspension Order, referred to the U.S. Attorney, local City Attorney, or other Legal Division for prosecution;
6. Referred for issuance of a citation; and/or
7. Referred to another law enforcement agency for prosecution.

How important are the following? Your career! Your personal and professional image and reputation! Your credibility! Your ability to maintain your current and/or have the opportunity to obtain future employment!

If an investigation is opened against you, is the number one priority the cost of your defense? However, does it make sense that the reason a lawyer may charge less is to do less? Is it likely a cut-rate attorney charges a lesser amount because (s)he handles a large volume of cases and, therefore, your expectation of personal service and winning results may be unfulfilled? Is it sufficient for you if the attorney does the obvious and no better than an “ok” job? Do you prefer quality, passion and a dedicated lawyer who is extremely motivated to win, works harder and seeks to go beyond the minimum, with a strategy for a compelling defense and offense? Do you want a lawyer with consistent winning results or are you willing to gamble on the outcome?

When you receive a call, visit or letter from an investigator, consider each of these factors when selecting a lawyer with a proven record and one who will truly fight for you. Remember, the investigator has the government on his/her side with superb lawyers to prosecute their cases and you deserve to have a formidable and premier attorney on your side, and to level the playing field.

Sacramento caregiver arrested in death of 88-year-old

Commentary by Sam Spital, Criminal Defense, Personal Injury, Professional & Occupational Licensing Attorney:

“On February 13, 2013, the Modesto Bee newspaper and electronic edition published an article in which Silvia Cata, the 52 year old owner of a long-term nursing care facility, Super Home Care, in Sacramento, was arrested for multiple criminal charges, including involuntary manslaughter and felony elder abuse against Georgia Holzmeister, an 88 year old patient who was suffering from Dementia that died as a result of reckless disregard of the basic duties in caring for patients. It was revealed that the victim suffered from blackened, Stage IV pressure sores on her buttocks causing sepsis, which is a life-threatening condition that occurs when any part of one’s body develops a toxic and severe response to bacteria or other germs. These are more commonly called pressure sores that form when patients are allowed to lie in one position for extended periods of time or simply not given the proper attention that requires their body to be frequently rotated while confined to bed.

It is an elementary principal of nursing care that patients should not be permitted to lie in bed for any extended length of time without being taken out of bed, taken to the bathroom, use walkers or wheelchairs if not ambulatory,  and of course receive regular care and attention. Unfortunately, some long term care facilities operate on a very low budget due to the nominal reimbursement from Medicare and Medi-Cal; yet, this is inexcusable and the Administrators and nursing personnel have an ethical, moral and legal responsibility to place the patient above the financial remuneration they may receive. If it is not possible to make a profit and do the right thing for their patients, the facility should close its operations. In this case, the California Department of Social Services (DSS) ordered an involuntary closure pursuant to an interim suspension order according to the article.

A Deputy Attorney General will be prosecuting the case for the California Bureau of Medi-Cal Fraud, and the defendant faces up to 12 years in state prison. The author of the article did not provide any details or information regarding the number and licensure of employees of the facility, the census of the facility in question, prior employment or business history of the defendant nor indicate whether contact was made with defense lawyers that handle such cases. It appears this is the first manslaughter criminal case in California that has been filed against an owner of a nursing facility. The case has been reported in countless print and electronic media due to the gravity of the situation.

The following link: https://www.cdph.ca.gov/certlic/occupations/Documents/NursingHomeAdministratorAct.pdf provides a detailed outline and summary of the Nursing Home Administrator Act and the rules and regulations that govern Administrators. No Nursing Home Administrator license or Certified Nurse Assistant license could be found by my law firm in searching the online data for Sylvia Cata, the defendant in this criminal case.  A search of the BRN and BVNPT websites also failed to show an LVN or RN license issued to Ms. Cata.

Family members will likely file a wrongful death lawsuit against the long term care facility as well as the owner, and any of the employees and personnel who were negligent and caused the deadly injuries in the case at hand. This may also include the attending physician, nurses, and anyone that may have billed Medi-Cal and Medicare (such as a physical therapist, podiatrist, occupational therapist, etc. if any of these health care providers were in attendance on one or more days in the period of time leading up to the death of Ms. Holzmeister).

Defense counsel will need to perform a thorough and exhaustive investigation including conferring with the employees of the facility; patients and family members; pharmacists and doctors; utilize forensic experts to develop a defense; and in launching an offense seek to establish compelling mitigating facts and circumstances.”

–Sam Spital

 

Tierrasanta Teacher Had Gun on Campus: Police – Teacher removed from school and placed on administrative leave

Commentary by Attorney Sam Spital, Criminal Defense Lawyer:

“NBC Channel 7 digital news reported on February 12, 2013 that Ted Walker, a 41 year old teacher at Farb Middle School as well as a ten year employee of the San Diego Unified School District, faces felony charges of possession of a firearm and a knife with a locking blade on school grounds. Parents were surprised when they learned of the arrest after being notified by email, telephone and/or via the internet. An investigation is currently being conducted to determine how long Walker had been carrying a concealed weapon and whether he has a permit to do so. Other details were not revealed by law enforcement, including the motivation of the teacher and whether any others at the school carry any weapons for protection.

In recent months, there has been a redoubled awareness of the continued and escalating violence at schools; as a result the issue of administrators and teachers being able to obtain a concealed gun permit besides school police carrying a weapon has been reported throughout the country. On the one hand this will require adequate training of such individuals as well as establishing guidelines for storing of guns and/or weapons, while on the other hand legislators and pundits have opined gun-free zones make schools in general and the public in particular easy targets for those that are prone to crime and violence.”

–Sam Spital

PREGNANT TEACHER TO BE LET OUT OF JAIL – Woman who had sex with teen will be freed early for birth

https://www.utsandiego.com/news/2013/feb/07/tp-pregnant-teacher-to-be-let-out-of-jail/

“According to the UT San Diego news on February 7, 2013, a teacher at the New Haven Youth & Family Services in Vista, a residential and educational facility in the northern part of San Diego County that treats boys from about 8 to 17 who suffer from emotional and behavioral challenges, was charged with having sex with a 16 year old former student at the facility. The Court ordered 35 year old Kelly McKenzy Watson, to be incarcerated in County Jail for one year with probation for 3 years. Although the Judge did not require her to register as a sex offender (RSO), he did include in his Order that she not work with minors in the future.

The article revealed the teenager had not considered himself a victim, he cares for and did not want the soon to be mother of his child to go to jail, and he wants to be involved in the life of their child. The Judge noted that Watson would be released from jail early in consideration for the health of the unborn child, and if she successfully completes probation Watson will not serve the remainder of her jail sentence.

It is clear such a sexual relationship is inappropriate, inexcusable and illegal. This conduct cannot be condoned in society, particularly since teachers hold a position of trust. In reviewing many of these cases, however, there does not appear to have been deviant sexual behavior, and the individuals have often evinced a strong bond of love and affection. On September 5, 2012, the Commission on Teaching Credentials suspended Watson for this misconduct pursuant to Education Code section 44940.. There are many unintended consequences in this tragic story, and in particular the loss of a Special Education teacher who are otherwise much needed in the school system. Click this link for the licensing status of the former educator who received her initial teaching credential in 2004:

How to Handle Contacts and Interviews From Government and Others?

As a mater of great concern is what to do when confronted with a telephone call from law enforcement,  a licensing Board, Bureau or Agency,  and/or an  investigator who is seeking to obtain the underlying facts,  information, details &/or answers to questions. Even more challenging is when such an individual makes an in-person contact with you. It is the considered opinion of this writer that any of these inquiries may have or produce both intended and unintended consequences.

Accordingly, there are multiple reasons we do not recommend our clients participate in any dialogue and/or series of questions and answers, without the advice of experienced legal counsel.   What may at first glance appear to be friendly and seem to not involve legal issues, may indeed produce legal exposure and liability. Seemingly innocent queries are frequently  investigations, which then turn out to be interrogations rather than interviews by others, whether by the government or an other individual.

What are some of the issues:

1) these encounters and confrontations are frequently conducted under the guise of an interview when there appears to be reasonable cause that a violation of law has taken place that puts you at risk for criminal, administrative &/or civil liability.
2) when law enforcement personnel and/or an agent thereof has not admonished you regarding your “Miranda” rights to remain silent, that what you  say may incriminate you, etc.  Then and as a result, you may not really know and understand the underlying allegations, summary of issues and, in particular not know and fully understand your rights, and innocently make a statement that is incriminating.
3) far too often, the dialogue you believed was of little or no consequence  is tape recorded.
4) the answerer is at a major disadvantage in trying to recall facts and respond when (s)he has not had a thorough opportunity to review the question(s) and all of the facts in a non-threatening environment, and hopefully with their personal attorney.
5) there is a built-in bias on the part of investigators or persons using a different title or description but conducting a search for information, facts and evidence,  that the answerer is not likely to be fully honest and  truthful because they believe the answerer has something to hide &/or they believe (s)he is equally informed of the facts of the case, and directly or indirectly is trying to be deceptive when nothing could be farther from the truth.

In summary, we recommend you confer with an experienced attorney before you engage in and or respond to any verbal or written communications from anyone (except your lawyer), whether from an investigator, enforcement personnel, analyst, government employee or staff  and/or any other law enforcement officer or agent,  as well as a former or current employer &/or their employees relating to what may be the basis of and/or lead to a violation of law, a legal problem, dispute or issue, disciplinary action,  etc.

Pharmacist Consultations Are Very Important

The California Board of Pharmacy mandates that Pharmacists provide personal consultations to individuals who are dispensed medications via a prescription when requested by the patient and in all cases if they did not previously receive the prescription and/or it was in a different dosage, form or strength.

 

In December, 2013, CVS Pharmacies entered into a settlement with the State as a result of enforcement actions by the Board of Pharmacy, and a couple of weeks ago Rite Aid paid nearly $500,000 as a monetary settlement shortly after a lawsuit was filed by the San Diego District Attorney and other Southern California and Northern California county District Attorneys.  Rite Aid did not admit liability, but in addition to the amount they paid to settle their case, they agreed to institute an internal audit and compliance program, and obey the patient consultation requirements in California.

 

The public needs to be protected and sufficiently informed when drugs are dispensed by pharmacies. Because a physician may not fully elaborate on the use of an individual medication, possible complications and adverse drug interactions, it is the pharmacist who can provide the protection the public needs so their health is safeguarded.

 

For a review of the 2014 Changes in Pharmacy Laws, click the following link: https://www.pharmacy.ca.gov/publications/14_spring_script.pdf

Deficiencies in assisted living homes to be addressed

This is an update to a previous blog post.

In response to a three-part series by The San Diego Union Tribune, lawmakers have pledged to take action and ramp up efforts so the area’s assisted living home do not fall short.

The findings from the investigation, which was done by the U-T in conjunction with the CHCF Center for Health Reporting at USC, shocked legislators. It showed that people accused of abuse and neglect are rarely prosecuted, and the maximum fines are staggeringly low.

It is inexcusable that people who abuse and neglect those that they are supposed to be caring for are not being properly prosecuted. Thankfully it has now been brought to the attention of lawmakers. This can pave the way for stronger legislation and action to protect those who are being harmed.

Orange County Doctor Arrested on Suspicion of Possessing Child Pornography – Dr. Pete Thomas, accused of possessing thousands of pornographic images involving children, turned himself in to a judge Tuesday (Sam Spital)

COMMENTARY BY SAM SPITAL, California Professional License Attorney and San Diego Criminal Defense Lawyer:

“A Podiatrist surrendered himself after an arrest warrant was issued for felony possession of child pornography per an account by the NBC Channel 7 online news edition on December 12, 2012. Little if anything else was reported in the article, and most importantly there was no explanation, mitigation and/or defense noted.

A Doctor of Podiatry is trained in foot care and, therefore, can diagnose and treat a variety of medical conditions related to the foot, ankle, and lower extremities.

A check of the Board of Podiatric Medicine website indicates Dr. Pete Thomas has been licensed in California since July 1, 1990. It is likely the Board will open an investigation if it does not already have one in place. Upon evaluating the evidence if it can be established there exists a sufficient basis for disciplinary action, the matter will be submitted to the Office of Attorney General to file an Accusation seeking to suspend or revoke his license to practice podiatry. An administrative hearing would then be scheduled in which an Administrative Law Judge would hear the evidence, including written and oral testimony. The Deputy Attorney General must prove the case by clear and convincing evidence, which burden of proof is much less than a criminal case that requires evidence beyond a reasonable doubt, but much greater than in a civil case in which one need only present a preponderance of evidence to prevail.”

Proposal would give benefits to same-sex military spouses

A new proposal could give housing, health care, and other benefits to same-sex spouses of military members by the end of August. The department would also give up to 10 days of leave to personnel so they could travel to a state where they could legally marry.

It is fortunate that the military is now willing and able to provide equal benefits to everyone in its ranks. The military is a fundamental and important part of our country. The people who choose to serve and their domestic partners deserve equal rights and protection under the law if members of the military are willing to give their lives for their country.

 

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