Hearing Information

The complaint charges you with a violation of a rule or a statute governing professional conduct, and it lists the specific acts which you are alleged to have committed which justify disciplinary action. In legal terms, the complaint is the formal document which gives you notice of what you must be prepared to defend or answer. You are now a "party" to this disciplinary proceeding called the "respondent". The Division of Legal Services and Compliance within the Department of Safety and Professional Services (Department) is the other party called the "complainant" or “division”. The hearing will be conducted by an administrative law judge (ALJ) who presides as judge (ruling on procedure, evidence, and objections) and as fact-finder. The mailing addresses for both the Division of Legal Services and Compliance attorney and the ALJ are provided in the Notice of Hearing.

You may be represented prior to and at the hearing by an attorney, but you are not required to have one. You must make this decision, and if you decide to be represented in order to protect your legal rights, you must choose your own attorney. A disciplinary proceeding may result in revocation, suspension, or limitation of your professional credential. Neither the Division of Legal Services and Compliance attorney nor the ALJ is allowed to recommend an attorney. The State Bar of Wisconsin offers a lawyer referral service that you may call at 800-362-9082. The ALJ cannot help you prepare or present your case.

As the Notice of Hearing provides, you are required by the rules of procedure to file a written Answer within twenty days of the day the complaint was mailed. Filing requires you to send the original Answer to the ALJ assigned to hear your case along with a copy to the Division of Legal Services and Compliance attorney whose name appears on the Notice. If meeting the 20-day deadline poses a problem for you, you should request an extension of time from the ALJ.

If you choose to prepare your own Answer, then it is important to respond in writing to every numbered paragraph of the Complaint and to sign it. You may "admit" the facts in a paragraph; you may "deny" the facts in a paragraph, adding any explanation that you think appropriate; or you may state that you have no basis for admitting or denying the facts, essentially saying that you do not know. You may also raise one or more issues which constitute a legal defense to the charges.

If you do not file an Answer, you will likely be found "in default" which means you have admitted all of the allegations contained in the complaint. If you only respond to selected allegations, the others will be treated as if you admitted them.

The ALJ will usually conduct at least one prehearing conference which may be held by telephone. The purposes are to clear away any misunderstandings, to reach agreement on as many of the facts as possible, to identify the real issues to be addressed, to review the exchange of documents and the identification of witnesses, and to set a realistic schedule for the hearing. In addition, if you and the Division of Legal Services and Compliance attorney have not already discussed the possibility of settling the case without a hearing, you may be encouraged to do that.

Even though you may contact the ALJ in certain circumstances, you should avoid what is called an ex parte communication. As the person who must listen impartially to the evidence, the ALJ must only consider facts and arguments which are presented to him or her at a time when both sides are present. Therefore, you may contact the ALJ with a procedural question, but any discussion of the "merits" of the case can only occur during a conference in which both parties participate.

You may want to use documents or other physical evidence to support your position. Under the rules of procedure for cases like this, each party has a right (with certain exceptions) to know what evidence the other party has. This is called "discovery". You may receive requests to provide documents or other information, and you may make similar requests of the Division of Legal Services and Compliance attorney. If you need help understanding this, or if you encounter any difficulty obtaining information which you think you are entitled to, you may contact an attorney or the ALJ who can arrange a prehearing conference.

You may want to call one or more witnesses to offer testimony to support your position or to identify and explain other documents. If so, you are responsible for having them appear. You may arrange for such witnesses to appear voluntarily at the hearing, or if a person will not agree to appear voluntarily, you may order him or her to appear for you by a subpoena. An attorney who you have hired to represent you can prepare a subpoena on your behalf, or you may contact the ALJ. If the ALJ issues a subpoena on your behalf, you must then arrange to have the subpoena served on the witness; you can do this yourself as long as you prepare an affidavit of service or you can have it done by the sheriff's office or a private process-server. Along with a subpoena, you must include payment to the witness of $5/day and 20¢/mile round trip for appearing. It is also a good idea to attach a map, such as the one attached to this brochure. A witness may be allowed to testify by phone; ask the ALJ about this well before the hearing date.

Just as each party may conduct discovery to find out what evidence will be used and introduced by the other party, the parties may be asked to disclose who they intend to call as witnesses. This may arise in a prehearing conference, or the ALJ may issue a specific order to exchange witness lists.

If you need an interpreter to help you understand the English language or if some accommodation would assist you to deal with a disability, please contact the ALJ, and he or she will attempt to arrange the hearing so that you can participate fully.

Some cases are settled by an agreement between the parties called a "stipulation". You are free to respond to, or to contact, the attorney listed in the notice of hearing to discuss the possibility of compromise or other settlement. The rules encourage settlement negotiations by prohibiting their disclosure to the ALJ if the case eventually goes to a hearing.

Unless your case settles or is rescheduled, it will be heard on the date specified in the notice of hearing. You are not required to appear at the hearing. However, if you do not appear, the hearing will proceed without you, and the rules of procedure allow the ALJ to interpret your absence as your admission that all of the allegations of the complaint are true.

Assuming you appear, the hearing will be conducted much like a trial without a jury. The ALJ will preside as judge (ruling on procedure, evidence and objections) and as fact-finder.

Just as in a trial, each side gets a chance to start with an opening statement (a short summary explaining what its general position is) and then to present evidence. The Division of Legal Services and Compliance attorney first presents his or her witnesses and other evidence, and then you may do the same. Each witness can be questioned by both parties: first the party who calls the witness asks questions (direct examination), then the other party asks questions (cross examination), then each party gets an opportunity to ask follow-up questions (re-direct and re-cross examination).

The evidence may be in documents or in testimony from witnesses. You may testify for yourself, and you may be called as a witness by the attorney for the Division of Legal Services and Compliance. (Although the Fifth Amendment protection against self-incrimination applies to the disclosure of facts which would subject you to criminal prosecution, please be aware that if you do refuse to testify, the ALJ in a disciplinary hearing is permitted to draw a negative inference from that refusal.) Some rules of evidence may limit what can be introduced, but no attempt will be made to explain all the rules here. If you anticipate any problem, such as whether a certain document will be admitted or certain testimony allowed, you or your attorney should contact the ALJ so that the issue can be discussed in a prehearing conference.

After all the evidence has been presented, each side may make a closing argument, which is an opportunity to comment on the evidence that has been presented, such as explaining how much credit should be given to certain testimony, or explaining otherwise confusing evidence. It is also each side's opportunity to argue what discipline, if any, would be appropriate.

You do not have to "prove your case". The Division of Legal Services and Compliance has the burden of proving that the allegations in the complaint are true, and it cannot add other charges against you which were not in the complaint, unless the complaint is formally amended. The hearing will be recorded and you will be able to purchase a copy of the transcript from the court reporting service if you wish.

If a good reason is shown by either party, the ALJ can reschedule the hearing, and a telephone conference may be held to set a new date.

Once a hearing has started, the ALJ may continue it on another day if more time is necessary.

If your case settles, the ALJ will usually adjourn the hearing, not canceling it entirely, but taking it off the calendar until the settlement is approved by the Department or board.

The final decision-maker in your case is the Department or board (depending on the profession). Once the hearing is completed, the ALJ is responsible for preparing a Proposed Decision which sets out all the facts of the case, which recites the laws (statutes and administrative rules) that govern the case, and which applies those laws to the facts. The ultimate questions to be answered are whether the facts alleged in the complaint were proven, whether those facts constitute violations of the statute or rule in question, and, if so, what discipline would be appropriate. The discipline available varies by profession, but typically includes a public reprimand, a suspension of your credential for a period of time, limitations on your practice, or revocation of the credential. Certain boards are authorized to impose money forfeitures, and the cost of the disciplinary proceeding may also be imposed on the respondent.

The proposed decision must be in writing for the Department or board to review, and the ALJ often waits until the transcript of the hearing is prepared before writing it. This means that the proposed decision may not be completed until a month or more after the hearing.

Once the proposed decision is filed, it will be sent to you and the Division of Legal Services and Compliance attorney, and you will be notified of a time (no less than ten days) in which you may file written objections to be considered by the Department or board before it makes its final decision. You will then receive a copy of the Final Decision, and you will have the right to appeal through the court system any decision that is not in your favor.