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Committee on Professional Responsibility for Clerks Rule 7: Preliminary Proceedings

[Disclaimer]

A. A screener shall screen each complaint immediately upon its receipt.

1. If the screener determines that a complaint does not set forth facts which, if true, would constitute misconduct or disability as defined by Supreme Judicial Court Rule 3:12, the screener shall recommend that the complaint be dismissed. Prior to making that determination, the screener may undertake a discreet and confidential investigation and evaluation. If the Committee accepts the screener's recommendation, the complaint shall be dismissed and the complainant, if known, shall be so notified.

2. If the screener, after an initial investigation and evaluation, determines that a complaint sets forth facts which, if true, would constitute misconduct and recommends to the Committee that it proceed further, the Committee shall decide whether there is adequate reason to proceed to the preparation of a sworn complaint or statement of allegations.

(a) If the Committee decides that further investigation is necessary before making this determination, the Committee may continue the investigation.

(b) If the Committee finds that there is insufficient cause to proceed, the complaint shall be dismissed and the complainant, if any, shall be notified.

(c) If the Committee finds that there is sufficient cause to proceed, the complainant, if any, shall be asked to file a detailed, signed, sworn complaint against the clerk. The sworn complaint shall state the facts constituting the alleged misconduct. If a sworn complaint is not obtained, the Committee shall prepare a clear statement of the allegations against the clerk and the alleged facts forming their basis. Where more than one act of misconduct is alleged, each act should be clearly set forth in the sworn complaint, or in the statement of allegations, as the case may be.

B. The clerk shall immediately be served with a copy of the sworn complaint or statement of allegations. Within twenty-one days after the service of the sworn complaint or the statement of allegations, the clerk may file a written answer with the Committee and may request a personal appearance before the Committee. If the clerk elects to appear personally, his statement shall be recorded. The clerk shall be entitled to be represented by counsel of his own choice.

C. After the clerk's answer and personal appearance, if any, the Committee may terminate the proceeding and dismiss the complaint and, in that event, shall give notice to the clerk and the complainant, if any, that it has found insufficient cause to proceed.

D. At any stage of the proceeding, the Committee or a Hearing Officer may hold a hearing at which oaths or affirmations may be administered. The Committee or Hearing Officer shall be entitled to compel the attendance and testimony of witnesses, including the clerk, and the production of papers, books, accounts, documents, electronic recordings, other tangible things, and any other relevant evidence or testimony. At any such hearing, the clerk may compel by subpoena the attendance and testimony of witnesses and shall be entitled to inspect documents, books, accounts, written or electronically recorded statements, and other records.

E. If the proceeding has not been dismissed or otherwise adjusted pursuant to Rules 7(C) or 6(F), the Committee shall thereafter dispose of the proceeding in one of the following ways:

1. If it finds that there has been no misconduct, written notice of dismissal shall be sent to the clerk and the complainant.

2. If it finds that there has been misconduct for which a private reprimand is adequate discipline, and if the clerk consents, it shall issue the reprimand. The complainant shall be notified that the matter has been so resolved.

3. If it finds that there has been conduct that is or might be cause for discipline but for which an informal adjustment is appropriate, it may so inform the clerk and, with the agreement of the clerk, it may admonish the clerk, direct professional counseling or assistance for the clerk, or impose conditions on the clerk's future conduct. The complainant shall be notified that the matter has been so resolved. When either conditions are imposed, or treatment is prescribed pursuant to Rule 9, the Committee shall provide for enforcement of such conditions and supervision of such treatment.

4. If it finds by a preponderance of the credible evidence that there is sufficient cause to believe that there has been misconduct of a nature requiring a formal disciplinary proceeding, the Committee shall issue formal charges against the clerk. A copy of the formal charges shall be served promptly upon the clerk, and the clerk shall have ten days to respond. The complainant, if any, shall be notified of the filing of formal charges.

F. Notwithstanding the procedures set forth in this Rule 7, the Committee may issue formal charges against the clerk at any stage in the proceeding if the Committee finds there is clear and convincing evidence of misconduct of a clerk of a nature requiring a formal disciplinary proceeding. The clerk may, subject to the Committee's approval, waive the preliminary proceedings and request that formal charges be issued at any stage in the proceeding.