If a Professional Commits Malpractice, Can Their Profession Take Away Their License?

By Nick Levinson

Someone does a lousy job, maybe harmful. They had a certificate or something and you want it yanked. Their professional organization sometimes can do that: Uh, sort of, but they probably won’t, even if your case is airtight. If the person has a government license, look to the government for relief. That’ll be difficult, too, but not as hard.

Private professional organizations, especially the large well-known ones in the United States, often have detailed membership standards, solicit public complaints, have a process for considering and deciding on complaints, and have an array of sanctions against misbehaving members. They often have designated people responsible for enforcing ethical standards and contact information for getting started. They often have all this in parallel with the government process.

But the problems with the private process are critical. One is that the person to be acted against can often sue the organization for defamation of character or a related claim. Because of that, organizations are loathe to publicize your complaint or to find a violation. So, they accept your complaint and, almost immediately, ask you to agree that you won’t tell anyone about it until it’s done, or else they may treat your complaint as less credible and just a publicity stunt.

Typically, the standards that are to be applied are about how to be good at the profession. But the person you’re complaining about may only want to be what the law requires of someone in their profession. This creates a problem for the organization: if they kick the person out for failing to be better than others in the profession, is that against the law? Obviously not, you might think, because there are ratings in some professions, museums don’t have to have works of all artists but can select better ones by any criteria and museums don’t all agree on who they are, and you’re permitted to choose who you think is best in any field. But an organization that holds itself out as open to any member of a licensed profession may have a legal problem in kicking someone out, if for no other reason than that defending a court suit from the unhappy former member can be expensive.

So, the organizations have a few strategies.

Not paying dues leads to ejection. That’s easy. Proof is easy; the organization need do little more than send a bookkeeper to testify that the dues were not paid. Knowing how easy that is, no one is likely to sue over that issue. There probably were reminders sent a couple of times, and testimony about that makes a lawsuit even less likely. Dues usually are low relative to the professional’s income, so someone not paying probably doesn’t think the membership is important or isn’t making much money from practicing the profession, so they’re hardly willing to sue.

Sometimes, they force people out for violating what is against the law even if the organization had no standards. For example, they might toss a lawyer out for committing perjury, because perjury is a crime under State or Congressional legislation whether a bar association says so or not. This is rare, but a possibility. Sometimes, resigning has a benefit in defusing a controversy that would not benefit the lawyer as they build a new career; and sometimes a lawyer has been out of practice for long enough that no one would hire them to draft a contract or represent them at trial, because it’s almost certain that they have not been reading State or Federal appellate court opinions by the hundreds in years, and many ordinary lawyers could embarrass them as legal morons in full view of a court. They could advise current attorneys, but for legal advice to clients it would be better, and likely less costly, to go to a regular practicing attorney who’s reasonably up to date on the law. So, if the violation of law outside the organization is clear anyway, and being removed from the profession is nearly certain regardless of what a professional organization says, then the professional organization won’t have much difficulty disenrolling that member. This may be more fruitful than asking a government to act. Even so, the cases where organizations will be proactive are probably where the offense is major, records of the offense are public and virtually indisputable even by the lawyer in queston, and where the removal will hardly be controversial among the organization’s members.

Drafting the standards is another way out for the organizations. Many are drafted in ways that make them sound glorious but unenforceable even within the organization. The loopholes are laughable among lawyers, regardless of the profession involved. It’s probably deliberate; writing loopholes discourages most would-be hot-shot enforcers from trying to enforce them and thereby laying the groundwork for big bills the organization will have to pay down the road. Since you can’t force a private organization to draft ironclad standards, your complaint will die with little more than an official letter of regret.

And it’s generally in the interest of the organization to have as many dues-paying members as it can persuade to join. It increases dues income; it generally increases ancillary income, such as conference fees and publilcation sales; it generally increases the organiation’s political clout; and the reputational cost from keeping a few bad actors is nearly zero. On the other hand, those factors count for little or nothing to government licensing agencies, so an agency can remove someone with some difficulty but not as much, if your case is clear-cut.

For many activities, the private sector is better. For this, however, the government is better-equipped to do a better job about lifting a license someone should not have.