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Committee on Professional Responsibility for Clerks Rule 8: Formal Proceedings

[Disclaimer]

A. Upon the filing of the clerk's written response to the formal charges or the expiration of the time for its filing, the Committee shall, subject to Rule 5(D), file the formal charges and the response, if any, in the Office of the Clerk of the Supreme Judicial Court for the Commonwealth, and shall request that the Supreme Judicial Court designate both a Hearing Officer to take evidence and report thereon to the Committee and Special Counsel to prepare and present the case. Special Counsel who has been designated at an earlier stage of the proceeding shall continue to serve in that capacity.

B. The Committee shall schedule a hearing to take place in not less than thirty nor more than sixty days from the designation of a Hearing Officer and Special Counsel. The Committee shall immediately notify the clerk and all counsel of the time and place for the hearing.

C. Attached to the notice required by Rule 7(E)(4) shall be further notice that the Committee shall, within a reasonable time, make available for inspection upon the written request of the clerk all books, papers, records, documents, electronic recordings, and other tangible things within the custody and control of the Committee relevant to any issues in the disciplinary proceeding, and any written or electronically recorded statement within the custody and control of the Committee that is relevant to the issues in the disciplinary proceeding. The failure of the Committee to furnish timely any such materials shall not affect the validity of any proceedings before the Committee, provided that such failure is not substantially prejudicial to the clerk.

D. Within thirty days after service of the formal charges, the Committee or the clerk

1. May, upon written request to the appropriate party prior to the hearing:

(a) Have made available for inspection and copying within a reasonable period of time all books, papers, records, documents, electronic recordings, and other tangible things which the other party intends to present at a hearing.

(b) Obtain the names and addresses of witnesses to the extent known to a party in the proceeding, including an identification of those intended to be called to testify at the hearing.

(c) Have made available for inspection and copying within a reasonable period of time any written or electronically recorded statements made by witnesses who may be called to give testimony at the hearing.

2. May, upon such terms and conditions as the Committee may impose:

(a) Depose within or without the Commonwealth persons who may have relevant testimony. The complete record of the testimony so taken shall be made and preserved by stenographic record or electronic recording.

(i) The written application to the Committee shall state the name and post office address of the witness, the subject matter concerning which the witness is expected to testify, the time and place of taking the deposition, and the reason why such deposition should be taken.

(ii) Unless notice is waived, no deposition shall be taken except after at least seven days' notice to the other parties.

(iii) Unless otherwise directed by the Committee, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter of the proceedings. Parties shall have the right of cross-examination and objection. In making objections to questions or evidence, the grounds relied upon shall be stated briefly, but no transcript filed in the proceeding shall include argument or debate. Objections to questions or evidence shall be noted in the transcript, but the stenographer or recorder shall not have the power to decide on the competency, materiality or relevancy of evidence. Objections to the competency, relevancy, or materiality of the testimony are not waived by failure to make them before or during the taking of the deposition.

(b) Subpoena relevant witnesses and documents to the hearing.

(c) Seek any limitation or protection for any discovery permitted by this Rule.

E. Nothing in these Rules shall be construed to permit the discovery of any report made to the Committee by Special Counsel or other person conducting an investigation for the Committee. Furthermore, in granting discovery the Committee shall protect against disclosure the mental impressions, conclusions, opinions and legal theories of an attorney or other representative of a witness or party in these proceedings.

F. Other issues relative to discovery which are not covered in these Rules shall be addressed or resolved in accordance with the comparable provisions of the Massachusetts Rules of Civil Procedure.

G. The formal hearing shall be conducted before a Hearing Officer appointed by the Supreme Judicial Court. The hearing shall be open to the public. The rules of evidence applicable to civil proceedings in Massachusetts shall apply, and all testimony shall be under oath. Special Counsel shall present the case on behalf of the Committee. The clerk whose conduct is in question shall be permitted to adduce evidence and produce and cross-examine witnesses. The Committee shall have the burden of proving the charges by clear and convincing evidence. Every hearing shall be transcribed.

H. The formal charges may be amended after commencement of the public hearing only if the amendment is technical in nature and if the clerk and his counsel are given adequate time to prepare a response.

I. Within thirty days after the conclusion of the hearing, the Hearing Officer shall submit to the Committee and to the clerk a report which shall contain proposed findings and recommendations, the transcripts of testimony and all exhibits. Upon receipt of the report of the Hearing Officer, the Committee shall send a copy of the report to the complainant forthwith.

J. Within twenty days after receipt of such report, counsel for the clerk and for the Committee shall each be allowed to submit to the Committee written objections to the proposed findings and recommendations. Any such objections shall become part of the record.

K. Within the same twenty-day period the clerk and the complainant, if any, may file a written request to be heard before the Committee regarding any recommended discipline. If either participant does so request, notice shall be given to both as to the scheduled time and place for such hearing, at least seven days in advance. Such hearing shall be public, but committee deliberations regarding such recommendation shall be conducted in executive session.

L. Unless there is good cause for delay, the Committee shall reach a decision on the basis of the full record within ninety days after the hearing concerning recommendation for discipline, if there is such a hearing, or otherwise within ninety days after receipt of the Hearing Officer's report. Its conclusions may differ from those proposed by the Hearing Officer. Its decision shall state specific reasons for all conclusions and recommendations.

M. The Committee shall immediately forward its decision and recommendations to the Supreme Judicial Court and shall thereafter take such action as the Court may direct.