When is a life coach a counselor?

Further complicating these discussions are the legal issues around what license is required and which board has authority over the person/licensee. Substance over form carries the day in resolving some of the issues, and regulatory boards are encouraged to exercise their authority when deemed appropriate. Consider the following.

The Michigan Department of Licensing and Regulatory Affairs (Department) includes both a counseling board and a psychology board. A counselor (Respondent) with a doctorate in counseling held a “limited license” in Michigan. He also held a limited license as a psychologist and worked under that license in a clinic as part of a state health care system. In addition, he maintained a private practice as a life coach, although he was not certified by any entity and had no training as a life coach. The state of Michigan does not regulate life coaches, and life coaches are not subject to discipline under the Michigan Public Health Code.

As a life coach, the Respondent advertised that he would assist clients “in finding their way to acquire new skills” and help them “achieve personal and career goals.” The Respondent established a professional relationship as a life coach with a client (Client), using a written agreement in which he stated, “At no time is [respondent] engaging in therapeutic services or psychotherapy.” The agreement referred to the Respondent as a life coach. Prior to signing the agreement, Respondent changed his title from Mr. to Dr. In addition to his signature, the Respondent included the following accreditations: Ph.D., L.L.P.C., L.L.P., and C.A.A.D.C. Thereafter, the Respondent met with the Client on several occasions in public places, such as a library or a coffee shop.

One evening, the Respondent, who had been drinking, had a fight with his wife. He left his home, eventually texted the Client, and proceeded to meet her at her apartment. They drank, smoked marijuana, and according to the Respondent, “engaged in consensual sexual activity.” The Client, however, reported to police that the Respondent had sexually assaulted her, and she obtained a protective order. After conducting an investigation, the police found no basis to file criminal charges. The Client filed administrative complaints with both the counseling board and the psychology board. The two complaints were consolidated and heard together before one administrative law judge (ALJ).

At the hearing, the Respondent denied that he acted as a therapist or in a professional counseling capacity when he provided life coaching services to the Client. The Client did not testify, and the Department called one expert witness. The expert testified that the Respondent likely used counseling components and techniques when providing life coaching services to the Client. The ALJ concluded that the Department failed to prove violations by a preponderance of the evidence and recommended dismissal of the complaint.

The psychology board dismissed the matter. The counseling board (Board) rejected in part and accepted in part the ALJ recommendations. The Board determined that the Department established that the Respondent had violated his “general duty, consisting of negligence, or failure to exercise due care, and conduct that impairs, or may impair, the ability to safely and skillfully practice as a counselor….” The Board also found that the Respondent lacked good moral character and was subject to adverse action under the Public Health Code. As a result, the Board suspended his counseling license for a period of six months and one day and fined him $1,000. The Respondent appealed.

On appeal, the Respondent argued that the ALJ erred in allowing and relying upon the testimony of the expert witness for the Department. The Respondent argued that the expert lacked any training or experience in life coaching and was not a practicing counselor. The court found that it was appropriate for the expert to testify on behalf of the Department, noting that the expert had the educational requirements necessary to obtain and maintain licensure as a professional counselor. Thus, the expert was qualified by knowledge, skill, experience, training, or education to testify. Importantly, the court found that even though the expert was not trained as a life coach, she was able to determine that the Respondent’s services fell within the definition of counseling, “notwithstanding that they may have fallen under the rubric of life coaching.” As stated by the court, “Respondent has presented no evidence that life coaching and counseling services are mutually exclusive.”

The court also found that the Department was not in error in relying upon the testimony of the expert. She testified about the significant overlap between counseling and life coaching services, including the trust and vulnerability that exists for clients and the need for the Respondent to uphold professional boundaries. Based on the expert’s opinion that the Respondent provided at least some counseling services, the court determined that the Respondent’s decision to sexually engage with the Client “evidenced a lack of professional judgment that may impair his ability to skillfully and safely practice as a counselor.”

The court noted that the Board’s disciplinary subcommittee may rely upon its own expertise in determining violations of the Public Health Code. Where conduct lacks basic elements of professional integrity, there need not be expert testimony. Under these circumstances, the Department’s decision to sanction the Respondent was supported by competent, material, and substantial evidence even without the testimony of the expert.

Finally, the Respondent argued that the counseling board should be estopped, or precluded, from sanctioning his license because the psychology board dismissed the complaint. He argued that the dismissal without an appeal acts as either collateral estoppel or res judicata. Collateral estoppel precludes relitigation of an issue of fact or law that was decided by a final judgment in a prior action. Res judicata precludes relitigation of claims that were previously decided on the merits.

In rejecting these arguments, the court referenced two issues. First, the psychology board dismissed the complaint and, thus, never decided on the merits. Second, the actions or inaction of the psychology board does not prevent or preclude the counseling board from making its own determination regarding the Respondent’s counseling license. Consequently, the court found no error in the findings of the Board and affirmed the suspension of six months plus one day and the $1,000 fine.

This case, which involves multiple boards, presents a shining example of where authority starts and stops and how scopes of practice can overlap. Adding to the complexity of the issues, and sensitive to the current regulatory climate and movements to deregulate, is the judicial recognition of significant overlap between a regulated profession (counseling) and an unregulated profession (life coaching). This overlap, which is an admission that significant services can be provided by an unregulated professional, will feed the appetite of the deregulation community and fuel arguments for removing government involvement. Social work boards must be prepared to address the benefits of government licensure and develop appropriate messaging for policy makers, consumers, and applicants/licensees.

Department of Licensing & Regulatory Affairs v. Duncan, 2020 Mich. App. LEXIS 426 (App. Ct. MI 2020).