Upstarts, Holdouts, and Malcontents

by ANNE PAXTON

Editor, Professional Licensing Report

It's difficult to define an era when you are in the middle of it. But it's safe to assume that more history is made by those who are unhappy about something than by those who are content. This collection of recent developments focuses on people and groups who are making waves because they refused to go along, stuck their necks out, filed suit, or generally raised hell.

One of the biggest surprises so far this year was a March ruling by a California appellate court that declared the mandatory continuing education program of the state bar unconstitutional. It happened after attorney Lew Warden, age 73, decided to challenge the minimum requirement. The bar requires all active attorneys to complete 36 hours of legal education every three years, including four hours of ethics instruction, four in either ethics or law practice management, one hour in the elimination of bias, and one hour in substance abuse. Warden argued that because the law exempted California state legislators, law professors, and judges, it should be overturned. The court agreed.

The bar has appealed the ruling to the California Supreme Court, arguing that the appeals court misapplied the rational-basis test for deciding constitutionality. A ruling is expected this summer. But new legislation may be necessary to get rid of the exemptions, and the ruling also places a cloud over the dozens of other state bars that have continuing education requirement waivers similar to California's.

Minnesota physician Steven Miles didn't file suit, but he's openly challenging the state medical board's procedures for deciding whether to renew physician licenses—procedures he calls poorly grounded, counterproductive, overly invasive, and potentially illegal. Diagnosed with Type II bipolar disorder, or manic depression, Miles reported on his 1996 renewal form that he had been successfully treated for the disorder. The board asked for his medical records, including notes of conversations with his psychiatrist, and he refused. Miles, who has never been disciplined or sued, and whose professional conduct has never been the subject of a complaint to the board, agrees that physicians impaired by mental or physical disorders should not be practicing medicine. But he contends that those with mental disorders should not be presumed to be impaired because they sought treatment.

The board's position is that several mental diagnoses, including bipolar disorder, can be extremely disabling illnesses and can greatly impair the ability to practice a profession. But unlike physical disabilities, the board states, they may also affect sufferers' insight and ability to cooperate with treatment.

In the accounting field, an upstart called the National Association of Personal Financial Advisors, membership 525, unexpectedly scored a major victory over the American Institute of Certified Public Accountants. In January, the NAPFA announced it had won trademark protection for the term "fee-only" when used in financial planning. While it didn't claim exclusive rights to the newly trademarked term, NAPFA did say it could only be used by people who are compensated directly by their clients, not through commissions or other rewards for selling the products that go into a financial plan. "Some people who earn commissions claim they can still offer 'fee-only' services," the group said. "That's not true. Only means only."

According to the Consumer Federation of America, three in five financial planners who claim to offer fee-only services actually earn commissions or other compensation for implementing their recommendations to the clients. Clearly, some of them are operating with a looser definition than the one demanded by NAPFA. But facing legal action by the major accounting groups, NAPFA announced in May that instead of protecting a trademark, it would offer a "Fee Only" certification mark that could only be used by financial advisors who are screened by an independent third party.

So while NAPFA had to back down, it's still making a point. The same thing may happen to Thomas M. Cooley Law School in Lansing, Michigan. In offering a weekend-only law program that working students can attend, Cooley does not appear to be doing anything radical. But no other accredited law school is doing it, because the American Bar Association, whose stamp of approval through accreditation is all but indispensable for law schools, discourages the schools from permitting students to work full time. Cooley is hearing rumblings from the ABA, where officials are claiming the weekend program needs separate accreditation.

Elsewhere, a move is afoot to give more rights to people who complain. At a February meeting of the Colorado medical board, which is considering broader information policies, board administrator Susan Miller proposed that the board allow complainants to have a copy of the physician's response to the complaint. "It's not that I necessarily believe the outcome of the cases would change substantially," Miller said. "But it would provide the public with a better perception of the process."

Amid some vocal opposition to the idea, the board postponed a vote on the issue. But it did agree to initiate a sampling of complaints—possibly one out of five—to determine whether physicians tell the board the truth when they respond. The focus of the study will be on complaints the board would normally not pursue because it didn't find probable cause.

Most complainants aren't happy, period, if a complaint is dismissed, Miller said. But their fear or suspicion is that the doctor lied about what went on. "What I hear from them is a fundamental fairness issue," she said, because the physician sees their complaint but not vice versa. She hopes the study will confirm that the process used by the board to decide whether to pursue a complaint is rational and defensible.

These are just a few of the upstarts, holdouts, and malcontents out there. Fortunately, they're helping to keep professional licensing interesting.