Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts


RULES OF THE BOARD OF BAR OVERSEERS

[Including all amendments through 01/01/07]

Index to Rules

CHAPTER 1. GENERAL PROVISIONS
Section 1.1 Title
Section 1.2 Definitions

CHAPTER 2. INVESTIGATIONS AND INFORMAL PROCEEDINGS SUBCHAPTER A. PRELIMINARY PROVISIONS
Section 2.1 Initiation of Investigations
Section 2.2 Contents of Grievance
Section 2.3 Distribution of Grievance Forms
Section 2.4 Preliminary Screening and Filing of Grievance
Section 2.5 [Reserved]
Section 2.6 Notification to Respondent
Section 2.7 Bar Counsel's Recommendation
Section 2.8 Review of Bar Counsel's Recommendation
Section 2.9 Appeal by Bar Counsel from Modification of Recommendation
Section 2.10 Notification of Disposition of Grievance or Formal Complaint

SUBCHAPTER B. FINAL DISPOSITION WITHOUT FORMAL PROCEEDINGS
Section 2.11 Admonition
Section 2.12 Demand by Respondent for Formal Proceedings when Admonition is Administered

SUBCHAPTER C. DEFERMENTS
Section 2.13 Deferment of Matters Involving Related Pending Civil or Criminal Litigation.

CHAPTER 3. FORMAL PROCEEDINGS SUBCHAPTER A. PRELIMINARY PROVISIONS
Section 3.1 Construction of Chapter
Section 3.2 Procedure to Apply
Section 3.3 Timely Filing Required
Section 3.4 Representation of Respondent
Section 3.5 Format of Pleadings and Documents
Section 3.6 Execution
Section 3.7 Continuances
Section 3.8 Service of Documents by the Board
Section 3.9 Service of Documents by a Party
Section 3.10 Date of Service of Documents
Section 3.11 Proof of Service of Documents
Section 3.12 Form of Certificate of Service
Section 3.13 Institution of Formal Proceedings
Section 3.14 Petition for Discipline
Section 3.15 Service of Petition On Respondent and Answer
Section 3.16 Amendment of Pleadings
Section 3.17 Discovery
Section 3.18 Pre-Hearing Motions
Section 3.19 Assignment for Hearing
Section 3.20 Date and Place of Hearing
Section 3.21 Notice of Hearing

SUBCHAPTER C. HEARINGS
Section 3.22 Public Access to Proceedings; Protective Orders
Section 3.23 Initiation of Prehearing Conferences to Expedite Hearings
Section 3.24 Prehearing Conferences to Expedite Hearings
Section 3.25 Authority of Hearing Committee, Hearing Panel, or Special Hearing Officer at Prehearing Conferences
Section 3.26 Rulings of Hearing Committee, Hearing Panel, or Special Hearing Officer at Prehearing Conferences
Section 3.27 Appearances
Section 3.28 Order of Procedure
Section 3.29 Presentation by the Parties
Section 3.30 Limiting Number of Witnesses
Section 3.31 Additional Evidence
Section 3.32 Motions
Section 3.33 Transcript
Section 3.34 Transcript Corrections
Section 3.35 Copies of Transcripts
Section 3.36 Oral Examination
Section 3.37 [Reserved]
Section 3.38 Presentation and Effect of Stipulations
Section 3.39 Admissibility of Evidence
Section 3.40 Reception and Ruling on Evidence
Section 3.41 Copies of Exhibits to Parties, Special Hearing Officers, and Hearing Committee or Panel Members
Section 3.42 Oral Argument
Section 3.43 Time for Filing of Briefs
Section 3.44 Content and Form of Briefs
Section 3.45 Filing and Service of Briefs
Section 3.46 Filing of Report
Section 3.47 Contents of Report
Section 3.48 Report a Part of the Record
Section 3.49 Service of Report

SUBCHAPTER D. REVIEW BY BOARD
Section 3.50 Procedure on Appeal
Section 3.51 Content and Form of Briefs on Appeal
Section 3.52 Review by Board When There Has Been No Appeal
Section 3.53 Action by Board
Section 3.54 Recusal of Reviewing Board Member
Section 3.55 Dismissal of Proceeding
Section 3.56 Admonition and Public Reprimand
Section 3.57 Demand for Filing of Information
Section 3.58 Filing an Information

SUBCHAPTER E. REOPENING OF RECORD
Section 3.59 Reopening on Application of Party
Section 3.60 Reopening by Hearing Committee or Panel
Section 3.61 Reopening by Board Action

SUBCHAPTER F. REINSTATEMENT
Section 3.62 Procedure on Petitions for Reinstatement Generally
Section 3.63 Reinstatement Questionaire
Section 3.64 Costs Deposit
Section 3.65 Hearing Procedures
Section 3.66 Expenses of Reinstatement Proceedings
Section 3.67 Public Notice of Reinstatement Proceedings
Appendix Ė Reinstatement Questionnaire

CHAPTER 4. MISCELLANEOUS MATTERS SUBCHAPTER A. RESIGNATIONS
Section 4.1 Resignation by Lawyers under Disciplinary Investigation

SUBCHAPTER B. EXPUNCTION
Section 4.2 Expunction of Records

SUBCHAPTER C. VACATING AN ADMONITION
Section 4.3 Vacating an Admonition and Dismissal of the Underlying Complaint

SUBCHAPTER D. SUBPOENAS
Section 4.4 Investigatory Subpoenas
Section 4.5 Hearing Subpoenas
Section 4.5A Reciprocal Subpoenas
Section 4.6 Service
Section 4.7 Confidentiality of Investigatory Subpoenas
Section 4.8 Motions to Quash

SUBCHAPTER E. DEPOSITIONS WHEN PERSONAL APPEARANCE IMPRACTICAL
Section 4.9 Depositions
Section 4.10 Notice and Application
Section 4.11 Authorization of Taking Deposition
Section 4.12 Officer Before Whom Deposition is Taken
Section 4.13 Oath and Reduction to Writing
Section 4.14 Scope and Conduct of Examination
Section 4.15 Status of Deposition as Part of Record
Section 4.16 [Reserved]

SUBCHAPTER F. NOTIFICATION OF DISBARMENT, RESIGNATION, SUSPENSION, TEMPORARY SUSPENSION, OR DISABILITY INACTIVE STATUS
Section 4.17 Form of Notification
Section 4.18 [Reserved]
Section 4.19 [Reserved]
Section 4.20 Affidavit of Compliance

CHAPTER 5. ORGANIZATION AND ADMINISTRATION SUBCHAPTER A. THE BOARD OF BAR OVERSEERS
Section 5.1 Meetings of the Board
Section 5.2 Conference Telephone Meetings
Section 5.3 Agenda
Section 5.4 Members not to be Voluntary Character Witnesses

SUBCHAPTER B. ADMINISTRATION
Section 5.5 The Administrator
Section 5.6 Communications and Filings Generally
Section 5.7 Dockets
Section 5.8 Records

SUBCHAPTER C. BAR COUNSEL
Section 5.9 Practice of Law by Bar Counsel Prohibited
Section 5.10 Retention of Records by Bar Counsel

SUBCHAPTER D. HEARING COMMITTEES
Section 5.11 Service on Other Hearing Committees
Section 5.12 Duties of Chair
Section 5.13 Meetings of Hearing Committees  
 
 



 
 
CHAPTER 1. GENERAL PROVISIONS

Section 1.1 Title

These rules shall be known and may be cited as the "Rules of the Board of Bar Overseers", and are hereby promulgated pursuant to Supreme Judicial Court Rule 4:01, Section 5(3)(h).

Section 1.2 Definitions

Subject to additional definitions contained in subsequent provisions of these Rules, the following words and phrases shall have, unless the context clearly indicates otherwise, the meanings given to them in this section.

ADMINISTRATOR: The Administrator as established by Section 5.5 of these Board Rules.

BAR COUNSEL: Bar Counsel or Bar Counselís designee.

BOARD: The Board of Bar Overseers as appointed from time to time by the Supreme Judicial Court.

BOARD CHAIR: The Chair of the Board of Bar Overseers.

BOARD RULES: The provisions of the Rules of the Board of Bar Overseers of the Commonwealth of Massachusetts. Also referred to as "these Rules."

CHARGING MEMORANDUM: A confidential memorandum prepared by Bar Counsel solely for the consideration of a Reviewing Board Member when discipline is recommended which describes the investigation undertaken, the disciplinary charges to be brought, the facts uncovered by the investigation which support the charges, the respondent's disciplinary history, if any, and Bar Counselís reasons for recommending that discipline be imposed.

COMPLAINANT: Any person who has filed a grievance or formal complaint.

COMPLAINT: As used in Supreme Judicial Court Rule 4:01 shall mean, for purposes of these Rules, a grievance or formal complaint.

COURT: Supreme Judicial Court of the Commonwealth of Massachusetts.

DISCIPLINARY DISTRICT: One of the six districts into which this Commonwealth is divided for disciplinary purposes as set forth in Section 2 of S.J.C. Rule 4:01.

DISCIPLINARY RULES: S.J.C. Rules 3:07, 3:08 and Chapter 4.

FORMAL COMPLAINT: A grievance that has been docketed as a formal complaint pursuant to Section 2.4 of these Rules.

FORMAL PROCEEDING: A proceeding subject to Chapter 3 of these Board Rules.

GRIEVANCE: A statement of alleged misconduct or request for investigation filed with the Board or Bar Counsel pursuant to Sections 2.1 through 2.4 of these Rules.

HEARING COMMITTEE: A hearing committee appointed by the Board under Section 5(3)(c) of S.J.C. Rule 4:01. Unless otherwise provided herein, the words "hearing committee" used throughout this rule shall also mean a hearing panel or a special hearing officer.

INFORMATION: Proceedings filed by the Board in the Supreme Judicial Court in any case where disbarment or suspension of a lawyer is sought or recommended or when a lawyer or Bar Counsel has appealed from a Board decision to administer a public reprimand or admonition or to dismiss a case.

INVESTIGATION: Inquiry into facts under the direction of Bar Counsel or the Board with respect to alleged misconduct or to reinstatement.

NOTARIAL OFFICER: An officer authorized under Section 4.9 of these Rules to take depositions for use before a hearing committee, hearing panel, or special hearing officer.

PARTIES: The parties to a proceeding under these Rules are Bar Counsel and the respondent.

PETITION FOR DISCIPLINE: A formal pleading filed by Bar Counsel with the Board requesting disciplinary action by the Board under the Disciplinary Rules, or Supreme Judicial Court Rule 4:01.

PROOF OF SERVICE: A certificate of service complying with Sections 3.11 and 3.12 of these Board Rules.

RESPONDENT OR RESPONDENT ATTORNEY: A lawyer admitted to or engaging in the practice of law in this Commonwealth or any lawyer specially admitted by a Court of this Commonwealth for a particular proceeding, who in either case is alleged to have been guilty of misconduct in a grievance or formal complaint. In a reinstatement proceeding the term shall also include the lawyer or former lawyer seeking reinstatement.

REVIEWING BOARD MEMBER: A member of the Board who has been designated by the Board Chair to review recommendations submitted by Bar Counsel.

SPECIAL HEARING OFFICER: A lawyer appointed by the Board to hear charges of misconduct when, in view of the anticipated length of the hearing or for other reasons, the Board determines that a speedy and just disposition would be better accomplished by such appointment than by referring the matter to a hearing committee or panel of the Board.



 
 
CHAPTER 2. INVESTIGATIONS AND INFORMAL PROCEEDINGS
 

SUBCHAPTER A. PRELIMINARY PROVISIONS

Section 2.1 Initiation of Investigations
 
(a) At Direction of Board. Upon the order of the Board, Bar Counsel shall undertake and complete an investigation of the conduct of any lawyer as may be specified in the order.

(b) By Bar Counsel (1) Bar Counsel shall undertake and complete an investigation of all matters involving alleged violations of the Disciplinary Rules filed in accordance with Section 2.2 of these Rules, provided that Bar Counsel need not entertain any grievance arising out of acts or omissions occurring more than six years prior to the date of the grievance.

(2) Bar Counsel may undertake an investigation of any conduct by a lawyer which may violate the Disciplinary Rules.

Section 2.2 Contents of Grievance

Each grievance relating to alleged misconduct of a lawyer shall be in writing and signed by the complainant and shall contain a brief statement of the facts upon which the grievance is based. Verifications of the grievance shall not be required. If necessary, Bar Counsel will assist the complainant in reducing the grievance to writing.

Section 2.3 Distribution of Grievance Forms

Bar Counsel shall furnish forms to each person who requests one. Such forms also may be made available to the public through the offices of the clerks of court in each county and through such other offices as may be designated by the Board.

Section 2.4 Preliminary Screening and Filing of Grievance

Grievances against the bar counsel, assistant bar counsel or any member of the Board involving alleged violations of the Disciplinary Rules shall be submitted directly to the Board for disposition pursuant to Section 5.6(c)(2) of these Rules. All other grievances shall be assigned a file number consisting of the letter "B" or "C", the number of the disciplinary district, the last two digits of the calendar year in which the matter is filed, and the serial number of the matter in such calendar year, e.g., B1-97-1; Cl-97-2.

Matters under investigation shall be initially docketed as grievances and labeled "B" unless (1) the matter appears to be grave, or (2) the lawyer complained of has been previously disciplined; or (3) the lawyer is the respondent in a petition for discipline; or (4) a formal complaint has been filed against the lawyer for a similar offense. In those cases the matter may be docketed as a formal complaint and labeled "C" at the sole discretion of Bar Counsel.

At any time during the pending of any investigation Bar Counsel, in his or her sole discretion, may redocket a grievance as a formal complaint for any of the following reasons:

(1) the matter appears to be grave,

(2) the lawyer complained of has been previously disciplined,

(3) the lawyer is the respondent in a petition for discipline,

(4) a formal complaint has been filed against the lawyer for a similar offense,

(5) the lawyer has failed to cooperate in the investigation of the matter,

(6) there is sufficient evidence of misconduct of the lawyer to justify treating the matter as a formal complaint.

Section 2.5 [Reserved]

Section 2.6 Notification to Respondent

Before making a recommendation of admonition, public reprimand by agreement or prosecution of formal charges as provided in Sections 2.7(a)(2)(B), 2.7(a)(2)(C) or 2.7(a)(2)(D) of these Rules, Bar Counsel shall forward to the respondent a request for a statement of the respondent's position, notifying the respondent of:

(1) the nature of the grievance or complaint, and, if the investigation has been initiated by the filing of a written grievance and unless Bar Counsel determines otherwise for good cause, the name and address of the complainant;

(2) the respondent's right and obligation to state his or her position with respect to the allegations against him or her within 20 days from the date of such notice unless a shorter time is fixed by Bar Counsel in such notice, and

(3) the fact that a copy of the respondent's reply to the grievance may be forwarded to the complainant.

Failure of the respondent to cooperate with Bar Counsel's request and any subsequent investigation may result in disciplinary action or administrative suspension under Supreme Judicial Court Rule 4:01, Section 3.

Section 2.7 Bar Counsel's Recommendation

Following completion of any investigation of the grievance or formal complaint which he or she deems appropriate and after consideration of any statement of position filed by the respondent, Bar Counsel may take any one of the following actions:

(1) Grievances. If the matter has not been docketed as a formal complaint pursuant to Section 2.4 of these Rules, Bar Counsel may close the grievance and notify the complainant and the respondent that the grievance has been closed.

(A) Bar Counselís notice to the complainant shall include a letter from the Board advising the complainant that he or she has a right to request review of the decision to close the grievance by a member of the Board and that such request must be made in writing no later than 14 days after the date of the notification by Bar Counsel. Bar Counsel's notice may include, if appropriate, information concerning other forums for consideration of the grievance (as specified in paragraph (a)(2)(E) of this section).

(B) If the complainant requests review of the closing of a grievance under this section, Bar Counsel shall transmit the file to the Board for review pursuant to Section 2.8 of these Rules.

(2) Formal Complaints. If the matter has been docketed as a formal complaint pursuant to Section 2.4 of these Rules, Bar Counsel may recommend to the Board:

(A) that the formal complaint be dismissed; or

(B) that an admonition be administered in those cases in which a violation of the Disciplinary Rules is found which is determined to be of insufficient gravity to warrant the prosecution of formal charges; or

(C) that formal discipline be imposed by agreement; or

(D) that formal charges be prosecuted; or  

(E) that the matter be closed after adjustment, informal conference, or reference to a bar association for mediation.

Section 2.8 Review of Bar Counsel's Recommendation

(a) Recommendation Other Than That Formal Charges Be Prosecuted.

(1) Bar Counsel shall submit to a Reviewing Board Member, along with the file, any request from a complainant for review of Bar Counsel's determination to close a grievance pursuant to Section 2.7(1)(B) of these Rules or Bar Counsel's recommendation that a complaint be dismissed or that an admonition be administered. When Bar Counsel's recommendation is to administer an admonition, Bar Counsel shall prepare and provide to the Reviewing Board Member a charging memorandum.

(2) The Reviewing Board Member may adopt, reject, or modify Bar Counsel's recommendation. If the Reviewing Board Member modifies or rejects the recommendation of Bar Counsel, he or she shall set forth this determination and the reasons therefor on the recommendation form. The Reviewing Board Member may confer with Bar Counsel in making his or her determination.

(b) Recommendation That Formal Charges Be Prosecuted (No Agreement).

(1) Bar Counsel's Recommendation. When the prosecution of formal charges is recommended pursuant to Section 2.7(2) (D) or when Bar Counsel seeks to amend a previously approved petition for discipline by adding or deleting charges, Bar Counsel shall prepare a petition for discipline or an amended petition for discipline and a charging memorandum or revised charging memorandum.

(2) Transmission of File. Bar Counsel shall forward to the Reviewing Board Member the documents set forth in section (b)(1) and the file.

(3) Standard of Review. In reviewing a recommendation to prosecute formal charges or to add or delete previously approved charges, the Reviewing Board Member shall make a determination

(A) whether the charging memorandum or revised charging memorandum supports the charges in the petition for discipline or the amended petition for discipline, and, if applicable, whether the revised charging memorandum adequately justifies the deletion of previously approved charges, and

(B) whether, if the charges in the petition for discipline or amended petition for discipline were to be proved by a preponderance of the evidence, the case would warrant public discipline.

(4) Action by Reviewing Board Member. The Reviewing Board Member may approve, modify, or reject Bar Counsel's recommendations under section (b)(1). If the Reviewing Board Member modifies or rejects Bar Counsel's recommendation, he or she shall set forth this determination and the reasons therefor on the recommendation forms. The Reviewing Board Member may confer with Bar Counsel in making his or her determination.

(5) Use of Charging Memorandum. The Charging Memorandum shall be considered only by the Reviewing Board Member and by the Board Chair on appeal pursuant to section 2.9 of these rules and shall notbe provided to the Hearing Committee, Hearing Panel, or Special Hearing Officer, or to the Board.

(c) Recommendation that Formal Discipline be Imposed by Agreement.

When the parties recommend under Section 2.7(2)(C) of these rules that formal discipline be imposed by agreement, Bar Counsel shall prepare a petition for discipline and the matter shall be referred directly to the Board under the procedures set forth in Section 3.19(d) and (e).

Section 2.9 Appeal by Bar Counsel from Modification of Recommendation

(a) General Rule. Bar Counsel may appeal to the Board Chair from a modification or rejection of his or her recommendation by the Reviewing Board Member.

The appeal shall state briefly the grounds relied upon by Bar Counsel for the appeal and shall be filed with the Board within 14 days after the decision by the Reviewing Board Member was noted, which time limit is jurisdictional.

(b) Action by Chair. The Board Chair shall consider the appeal and may in his or her discretion adopt, modify, or reject any action recommended by Bar Counsel or by the Reviewing Board Member.

(c) Review by Board. Bar Counsel may appeal the decision of the Board Chair to the full Board.
The appeal shall state briefly the grounds relied upon by Bar Counsel for the appeal and shall be filed with the Board within 14 days after the decision of the Board Chair is filed, which time limit is jurisdictional. (d) Appeals Administrative. Appeals under this section shall be administrative and not adversary in nature. Copies of the appeal shall be available only to the Board, and the respondent shall not be deemed a party to the appeal or have any right to be heard with respect thereto.

(e) Filing of Information. If Bar Counsel objects to having the matter concluded by dismissal, the Board shall file an Information pursuant to section 3.58 of these rules.

Section 2.10 Notification of Disposition of Grievance or Formal Complaint

As to dispositions other than approval of recommendations that formal discipline be imposed by agreement or that formal charges be prosecuted, Bar Counsel shall notify:

(1) the complainant and the respondent that the grievance has been closed or the formal complaint has been dismissed; or

(2) the respondent to appear in person before Bar Counsel at a time and place fixed in the notice for the purpose of receiving an admonition, including in such notice a copy of Section 2.11(b) and the information called for by Section 2.11(c) of these Rules; or

(3) the complainant and the respondent that the matter has been closed after adjustment, informal conference, or reference to a bar association for mediation.

If a matter has been dismissed or closed, Bar Counsel may notify the complainant, if appropriate, that the complainant may present his or her grievance to another jurisdiction, to a fee disputes committee or to any other duly constituted forum for the consideration of the grievance. If an admonition is administered, the complainant shall be notified after the admonition becomes final. If a public reprimand by agreement is imposed, an Information is filed by agreement of the parties with approval of the Board, or formal proceedings are commenced, the complainant shall be notified at the time that occurs.

SUBCHAPTER B. FINAL DISPOSITION WITHOUT FORMAL PROCEEDINGS

Section 2.11 Admonition

(a) General Rule. A lawyer who is given notice of admonition pursuant to Section 2.10 of these Rules shall appear in person before Bar Counsel, at a time and place fixed in such notice, for the purpose of receiving or refusing an admonition. If the admonition is administered, a record shall be made of the fact of and basis for the admonition, which record shall be retained as provided in Section 5.10 of these Rules.

(b) Failure to Appear. Failure of the respondent to appear in person on the scheduled date without good cause shall be deemed an act of professional misconduct in violation of Supreme Judicial Court Rule 4:01, Section 3(1)(c), and shall result in the institution of formal proceedings charging the respondent with the failure to appear and with the misconduct for which the admonition was to be given. The intention of a respondent to demand under Section 2.12 that formal proceedings be instituted against him or her shall not constitute good cause for the failure of the respondent to appear.

(c) Notice of Right to Formal Proceedings. In connection with the admonition, the respondent shall be advised of his or her right to demand the institution of formal proceedings by:

(l) refusing to accept the admonition; or

(2) vacating the admonition after it has been administered.

Section 2.12 Demand by Respondent for Formal Proceedings when Admonition is Administered

(a) General Rule. A respondent shall not be entitled to appeal an admonition by Bar Counsel but may demand, as of right, that formal proceedings be instituted against him or her. A respondent may make such demand either by following the procedure specified in subsection (b)(1) of this section for refusing to accept the admonition; or by following the procedure specified in subsection (b)(2) of this section for vacating the admonition after it has been administered. In the event of a demand under subsection (b)(2) of this section, the admonition shall be vacated. In the event of a demand under either subsection (b)(l) or subsection (b)(2) of these Rules, a petition for discipline shall be filed and dealt with in the same manner as any other petition for discipline.

(b) Procedure.

(1) At the time of the respondent's appearance before Bar Counsel pursuant to Section 2.11(a) of these Rules, Bar Counsel shall present the respondent with a summary of the basis for the admonition. After review of the summary, the respondent may at that time refuse to accept the admonition and instead demand the imposition of formal proceedings under subsection (a) of this section by signing a statement so indicating. A form shall be available to the respondent for this purpose, and the respondent will be provided with a copy of the signed statement.

(2) A demand that an admonition be vacated and formal proceedings instituted under subsection (a) of this section shall be in writing, shall be filed with the Board within 30 days after the date on which the admonition was administered, which time limit is jurisdictional , and a copy shall be served on Bar Counsel.

SUBCHAPTER C. DEFERMENTS

Section 2.13 Deferment of Matters Involving Related Pending Civil or Criminal Litigation.

An application for deferment of action under Supreme Judicial Court Rule 4:01, Section 11, may be made by the respondent or Bar Counsel. Such application shall be filed in the office of the Board and served on the opposing party. The other party may file and serve a written response thereto within 7 days thereafter.

After the response to a motion for deferment has been filed, or after the time for filing a response has elapsed, the matter shall be referred for determination to a Reviewing Board Member.



 
 
CHAPTER 3. FORMAL PROCEEDINGS
 

SUBCHAPTER A. PRELIMINARY PROVISIONS

Section 3.1 Construction of Chapter

This chapter is promulgated for the purpose of assisting Bar Counsel, the respondent and the Board to develop the facts relating to, and to reach a just and proper determination of, formal complaints. The Board will not hold any action of a hearing committee, hearing panel, or special hearing officer invalid by reason of any nonprejudicial irregularity, or for any error not resulting in a miscarriage of justice.

Section 3.2 Procedure to Apply

Except where inconsistent with these Rules, formal proceedings before hearing committees, hearing panels, special hearing officers and the Board shall conform generally to the practice in adjudicatory proceedings under Chapter 30A of the General Laws (State Administrative Procedure).

Section 3.3 Timely Filing Required

Pleadings or other documents in formal proceedings required or permitted to be filed with the Board under these Rules must be received for filing at the office of the Board within the time limits, if any, for such filing. On motion filed within the time limits established by this Section, the Board Chair may extend the time for filing. The date of receipt by the office of the Board, and not the date of deposit in the mails, is determinative.

Section 3.4 Representation of Respondent

(a) Appearance Pro Se. When a respondent appears in his or her own behalf in a formal proceeding, the respondent shall file with the Board, with proof of service upon Bar Counsel, an address, including a street address, at which any notice or other written communication may be sent.

(b) Representation of Respondent by Counsel. When a respondent is represented by counsel in a formal proceeding, counsel shall file with the Board, with proof of service upon Bar Counsel, a written notice of such appearance, which shall state his or her name, address and telephone number, the name and address of the respondent on whose behalf he or she appears, and the caption and file number of the subject proceeding. Thereafter, any notice or other written communication required to be served on or furnished to a respondent may be sent to the counsel of record for such respondent at the stated address of the counsel in lieu of transmission to the respondent.

(c) Service. Any notice or pleading required to be served on the respondent personally under these rules may be served in hand or by addressing it by certified, registered, or first class mail to the address furnished by the respondent during the proceeding. If the respondent has not furnished an address during the proceeding, service may be made by addressing it by certified, registered, or first class mail to the address furnished in the last registration statement filed by the respondent in accordance with Supreme Judicial Court Rule 4:02. Service by mail is complete upon mailing.

(d) Assistance in Obtaining Counsel for a Respondent. If a respondent in a formal proceeding desires counsel and cannot afford to retain counsel, then, upon application, the Board will seek to assist the respondent to obtain counsel either at a reduced or no cost. Nothing in this subsection (d) accords any substantive right to the respondent with respect to the appointment or payment of counsel.

(e) Policies Relating to Conflicts of Interest.

(1) No member of the Board, or partner or associate of a Board member, shall appear as counsel for a respondent in a disciplinary proceeding, provided that no partner or associate of a Board member shall be required to withdraw from a disciplinary proceeding pending at the time the Board member commences his or her term.

(2) No member of any hearing committee or hearing panel, and no special hearing officer shall appear as counsel for a respondent in a disciplinary proceeding.

(3) No partner or associate of a hearing committee member shall appear as counsel for a respondent in a disciplinary proceeding before the hearing committee on which the said hearing committee member serves. No partner or associate of a special hearing officer shall appear as counsel for a respondent in a disciplinary proceeding before the special hearing officer.

(4) No member of the Board or of any hearing committee shall appear voluntarily or make a submission as a character witness in a disciplinary or reinstatement proceeding.

Section 3.5 Format of Pleadings and Documents

(a) Typewritten. Pleadings or other documents filed in formal proceedings, if not printed, shall be typewritten on paper cut or folded to letter size 8½ inches wide by 11 inches long. The impression shall be on only one side of the paper and shall be double spaced, except that quotations in excess of a few lines may be single spaced and indented. Mimeographed, photostatted or otherwise reproduced copies will be accepted as typewritten, provided all copies are clearly legible.

(b) Binding. Pleadings and other documents, other than correspondence, shall be bound by staples or otherwise.

(c) Incorporation by Reference. Any document on file with the Board in a formal proceeding may be incorporated by reference into a subsequently filed pleading or other document.

(d) Identification. Pleadings or other documents filed in a formal proceeding shall set forth:

(1) The caption and docket number of the proceeding.

(2) A brief descriptive title of the pleading or document.

(e) Copies. All pleadings or other documents filed in a formal proceeding (other than correspondence) shall be filed with the Board. In any matter pending before a hearing committee, a hearing panel, or a special hearing officer, a conformed copy of each such paper, including all exhibits, if any, shall be furnished to the special hearing officer and to each member of the hearing committee or hearing panel. Whenever necessary or convenient, the Board, the hearing committee, the hearing panel, or the special hearing officer may order that a greater or lesser number of copies be filed.

Section 3.6 Execution

(a) Signature. Except as may be otherwise ordered or requested by the Board the original or each pleading or other document shall be signed in ink by the party or the partyís counsel, and shall show the office address and telephone number of such party or counsel. All other copies filed shall be fully conformed thereto.

(b) Effect. The signature of the person subscribing any document filed in a formal proceeding constitutes a certificate that the signer has read the document being subscribed and filed, and knows the contents thereof; that if executed in any representative capacity, the document has been subscribed and executed in the capacity specified upon the document with full power and authority to do so; that the contents are true as stated, except as to matters and things, if any, stated on information and belief, and that as to those matters and things, the signer believes them to be true.

(c) Verification. No written statement in any proceeding required to be verified by affidavit shall be required to be verified by oath or affirmation if it contains or is verified by a written declaration that it is made under the penalties of perjury.

Section 3.7 Continuances

(a) Avoidance of Delay. All formal proceedings under these Rules shall be as expeditious as possible, and all time limits shall be mandatory and not discretionary.

(b) Continuances. The chair of a hearing committee or hearing panel, or a special hearing officer, may grant an extension of time in a formal proceeding before the hearing committee

(c) Absence of Hearing Committee or Hearing Panel Member. The absence of a committee or panel member from any hearing shall not be cause for continuing the hearing as long as a quorum of the hearing committee or panel is present. Such member may participate fully in all deliberations of the committee so long as the transcript of the hearing at which he or she was absent is available to him or her.

Section 3.8 Service of Documents by the Board

Orders, notices and documents other than subpoenas originating with the Board shall be served by the Board by delivery in person or by mailing a copy thereof to the person to be served or the personís counsel.

Section 3.9 Service of Documents by a Party

All pleadings, briefs and other documents filed in formal proceedings, when filed or tendered to the Board for filing, shall be served upon all parties to the proceeding. Such service shall be made by delivery in person or by mail.

Section 3.10 Date of Service of Documents

The date of service shall be the day when the document served is deposited in the United States mail, or is delivered in person, as the case may be.

Section 3.11 Proof of Service of Documents

There shall accompany and be attached to the original of each pleading or other document filed with the Board, when service is required to be made by the parties, a certificate of service substantially in the form prescribed by Section 3.12 of these Rules. All other copies filed shall be fully conformed thereto.

Section 3.12 Form of Certificate of Service

I hereby certify that I have this day served by (indicate method of service) the foregoing document upon all parties of record in this proceeding. Dated this _____ day of ___________, 19_

_________________________
(Signature)

Counsel for ________________________
 

SUBCHAPTER B. PRE-HEARING PROCEEDINGS

Section 3.13 Institution of Formal Proceedings

Bar Counsel shall institute formal disciplinary proceedings by filing with the Board a petition under Section 3.14 of these Rules in either of the following cases:

(1) Pursuant to a referral from the Supreme Judicial Court under Bar Disciplinary Rule 4:01, Sections 12(4) and (5), following the conviction of the respondent for a crime.

(2) Pursuant to a determination to institute formal proceedings made under Chapter 2 of these Rules.

Section 3.14 Petition for Discipline

(a) Caption. A petition for discipline shall be captioned as follows:
 

COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS
OF THE SUPREME JUDICIAL COURT

BAR COUNSEL,

Petitioner

vs.                                                                                                                             File No.

James Roe,

Respondent

(b) Contents. The petition shall set forth specific charges of alleged misconduct.

Section 3.15 Service of Petition On Respondent and Answer

(a) A copy of the petition shall be served together with a notice from the Board which shall

(1) Set twenty days after such service upon the respondent as the time for answering.

(2) Advise the respondent that failure to file a timely answer to the petition shall be deemed an admission of the charges and that averments in the petition are admitted when not denied in the answer.

(3) Advise the respondent that failure without good cause to file a timely answer shall be deemed an act of professional misconduct in violation of Supreme Judicial Court Rule 4:01, Section 3(1)(c), and shall be grounds for administrative suspension pursuant to Supreme Judicial Court Rule 4:01, Section 3(2).

(b) Service of the petition shall be made by Bar Counsel.

(c) The respondent shall file an answer with the Board and serve a copy on Bar Counsel.

(d) Contents of Answer. The answer shall be in writing, and shall state fully and completely the nature of the defense. The answer shall admit or deny specifically, and in reasonable detail, each material allegation of the petition and state clearly and concisely the facts and matters of law relied upon. Averments in the petition are admitted when not denied in the answer in accordance with this section.

(e) Failure to Answer In Accordance With the Rules. The allegations in the petition for discipline shall be deemed admitted if the respondent fails to file a timely answer.

(f) Request to Be Heard in Mitigation. The respondent shall include in the answer any facts in mitigation and may request that a hearing be held on the issue of mitigation. Failure to include facts in mitigation constitutes a waiver of the right to present evidence of those facts.

(g) Procedure upon Failure to Answer. If no answer is filed within the time limit established by this section, the Board shall promptly notify the respondent that the allegations of the petition have been deemed admitted and that the opportunity to present evidence in mitigation has been waived. Unless Bar Counsel requests a hearing on matters in aggravation, the Board shall consider the matter of disposition on the basis of the admitted charges. The Board may order the parties to submit briefs.

(h) Motion for Relief from Default. Within twenty days of the date of the notice required by subsection (g) of this section, the respondent may file and serve a motion for relief from default. For good cause shown, the Board Chair may order that the default be removed and that the respondent be permitted to file to file an answer on or before a date determined by the Board Chair.

Section 3.16 Amendment of Pleadings

An amendment of any petition for discipline or other pleading may be made only on leave granted by a Board member or the hearing committee, hearing panel, or special hearing officer before which the matter is then pending.

Section 3.17 Discovery

(a) Within thirty days after the answer is filed or earlier upon written request by the respondent, Bar Counsel shall deliver to the respondent a copy of any statement or testimony of the respondent which has been stenographically or electronically recorded, whether or not the testimony was given in response to a subpoena.

(b) Upon motion, the Board chair or the hearing committee, hearing panel, or special hearing officer before which the matter is pending shall order that the parties exchange copies of any statement or testimony of a person whom the party intends to call as a witness which statement or testimony has been stenographically or electronically recorded or given as an affidavit, whether or not the statement or testimony was given in response to a subpoena.

(c) Upon request by the respondent, Bar Counsel shall permit the respondent to discover, inspect, and copy any books, records, correspondence, documents, or other material produced in response to a subpoena issued pursuant to Section 4.4 of these rules.

(d) This rule does not authorize discovery of those portions of records, reports, correspondence, memoranda, or internal documents of Bar Counsel or the respondentís attorney which are only the legal research, opinions, theories, or conclusions of Bar Counsel or Bar Counselís staff or of the respondentís attorney.

Section 3.18 Pre-Hearing Motions

(a) Motions Other Than Motions to Dismiss. Pre-hearing motions shall be filed with the Board and served upon the opposing party at least fourteen days before the hearing. The opposing party shall have seven days to file a response thereto. Upon the filing of any such response, or upon the expiration of the seven days, the motion shall be submitted to a member of the Board for determination. The Board member may refer the motion to the chair of the assigned hearing committee or hearing panel or to the special hearing officer for determination. A hearing on the motion may be held at the discretion of the Board member, special hearing officer, or hearing committee or panel chair as the case may be.

(b) Motions to Dismiss.

(1) All motions to dismiss the petition for discipline or any charges contained therein shall be determined by the Chair of the Board or the Chairís designee.

(2) The filing of such motion shall not stay a scheduled hearing. However, the Chair of the Board or the Chairís designee may stay such hearing upon application therefor in his or her discretion.

(3) If a motion to dismiss filed by Bar Counsel is denied, any of the parties may appeal such denial to the Board, which shall determine the matter at its next meeting.

(4) If a motion to dismiss filed by the respondent is allowed, Bar Counsel may appeal such determination to the Board, which shall determine the matter at its next meeting.

Section 3.19 Assignment for Hearing

(a) Hearing shall be held before a hearing committee, a hearing panel, a special hearing officer, or the full Board, at the discretion of the Board Chair. Unless otherwise stated the words "hearing committee" as appearing in Sections 3.20 through 3.49 of the Rules shall also mean a special hearing officer, a hearing panel or the full Board, where appropriate.

(b) If there are any contested issues raised by the answer, or if the respondent requests the opportunity to be heard in mitigation, the matter shall be assigned for hearing to an appropriate hearing committee, hearing panel, special hearing officer, or to the full Board.

(c) In the event the respondent files an answer admitting the charges, and does not therein request the opportunity to be heard in mitigation, but does not reach agreement with Bar Counsel on disposition, then the matter shall be assigned to a hearing committee, a panel of the Board or the full Board for hearing on disposition at which the parties shall be given the opportunity to present recommendations and argument on disposition, and evidence of prior disciplinary action or the lack thereof.

(d) In the event the respondent files an answer admitting the charges, does not therein request the opportunity to be heard in mitigation, and reaches agreement with Bar Counsel on a joint recommendation that the matter be concluded by a public reprimand or a suspension, then the matter shall be referred directly to the Board. If the Board agrees that a joint recommendation for a public reprimand is appropriate under the circumstances, the Board shall order a public reprimand without further proceedings. If the Board agrees that a joint recommendation for suspension is appropriate under the circumstances, it shall file an Information against the respondent in accordance with Section 3.58 of these Rules. A tie vote by the Board on a joint recommendation shall constitute a rejection of the recommendation.

(e) If the Board rejects the parties' joint recommendation filed under Section 3.19(d) of these rules, it shall issue a preliminary decision explaining the reasons for such rejection, and the parties shall have fourteen days from the date of service of the vote on the parties to file further briefs in support of the recommended disposition. If the Board thereafter upholds its preliminary decision to reject the joint recommendation of the parties, the Board shall state the reasons for its vote and the matter shall proceed pursuant to the provisions of Disciplinary Rule 4:01, Section 8(4), and Sections 3.55-3.58 of these rules unless the parties have reserved the right to a hearing on the charges or on discipline. If the parties have reserved the right to a hearing, they may, unless they have otherwise agreed, then amend their pleadings without prejudice, and the matter shall be assigned for hearing to an appropriate hearing committee, special hearing officer, a hearing panel of the Board, or to the full Board

(f) Composition of Committee. If the matter is assigned to a hearing committee or hearing panel, the Board Chair or his or her designee shall designate the one of the members of the hearing committee or hearing panel to serve as chair.

Section 3.20 Date and Place of Hearing

The date, time and place of hearing on a petition for discipline shall be determined by the special hearing officer or the chair of the hearing committee or hearing panel in consultation with the Board Chair or the Chairís designee and after consideration of any recommendations by the other members of the hearing committee or panel, Bar Counsel, and, if available, the respondent or the respondentís counsel. The date so fixed shall be such as to carry out the policy of avoiding delay.

Section 3.21 Notice of Hearing

The Board Chair or the Chairís designee shall give notice to the respondent, the respondentís counsel, and Bar Counsel of the date and place set for hearing.

The notice of hearing shall be served at least fifteen days in advance thereof and shall advise the respondent that the respondent is entitled to be represented by counsel, to cross-examine witnesses, and to present evidence in his or her own behalf. The notice shall further advise the respondent that failure to appear at a hearing shall be deemed an act of professional misconduct in violation of Supreme Judicial Court Rule 4:01, Section 3(1)(c), and shall be grounds for administrative suspension pursuant to Supreme Judicial Court Rule 4:01, Section 3(2).

SUBCHAPTER C. HEARINGS

Section 3.22 Public Access to Proceedings; Protective Orders

(a) Except as otherwise provided in this section and in Supreme Judicial Court Rule 4:01, Section 20, the Board and Bar Counsel shall keep confidential all information involving allegations of misconduct by a lawyer.

(b) Upon the service of a petition for discipline, the Board's proceedings are open to the public, except for:

(1) deliberations of the hearing committee, the hearing panel, the special hearing officer or the Board, and documents reflective of those deliberations, including without limitation charging memoranda, draft reports, and minutes of Board meetings;

(2) information with respect to which the Board has issued a protective order under paragraph (c) hereof;

(3) information with respect to which the Supreme Judicial Court has issued a protective order on appeal from a Board decision denying such order; or

(4) further proceedings following the recommendation by a hearing committee, a hearing panel, a special hearing officer or an appeal panel, or following an order of the Board or the Supreme Judicial Court, that an admonition be imposed or that a petition for discipline be dismissed. In such event, the record shall be sealed and the proceedings shall be closed until and unless the Board or the Supreme Judicial Court orders otherwise. (c) In order to protect the interests of a complainant, witness, third party, or respondent-attorney, the Board may, upon application of Bar Counsel or any affected person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement the order, including requiring that the hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the application. If bar discipline or other professional discipline has been imposed on the respondent on a prior occasion, in this Commonwealth or elsewhere, the fact that the discipline imposed is or has been confidential shall not constitute good cause for the issuance of a protective order. Bar Counsel or any affected person may appeal from an order granting or denying an application for a protective order by filing a notice of appeal with the Clerk of the Supreme Judicial Court for Suffolk County within seven days after the date of the notice of the Board's action, which time limit shall be jurisdictional. The pendency of such an appeal shall not be grounds to stay proceedings before a hearing committee, a hearing panel, a special hearing officer, or any panel of the Board.

Section 3.23 Initiation of Prehearing Conferences to Expedite Hearings

(a) General Rule. The hearing committee, hearing panel, or special hearing officer, with or without motion, and after consideration of the probability of beneficial results to be derived therefrom, may direct that a conference be held, and direct the respondent and Bar Counsel to attend. Due notice of the time and place of such conference shall be given to the respondent and Bar Counsel. The conference may be conducted by the chair of a hearing committee or panel or by any member of the committee or panel designated in writing by the chair.

(b) Preparation for and Action at Conference. All participants, including the respondent whether or not the respondent is represented by counsel, shall attend the conference fully prepared for a useful discussion of all problems involved in the proceeding, both procedural and substantive, and fully authorized to make commitments with respect thereto. Such preparation shall include, among other things, advance study of all relevant material, and advance informal communication between the participants, including request for additional data and information, to the extent it appears feasible and desirable.

Section 3.24 Prehearing Conferences to Expedite Hearings

At any prehearing conference which may be held to expedite the orderly conduct and disposition of any hearing, there may be considered the possibility of the following:

(1) The simplification of the issues.

(2) The exchange of exhibits proposed to be offered in evidence and the identity and addresses of all witnesses each party plans to call in its case in chief. When a party proposes to introduce testimony from an expert witness, the party shall be required to disclose the qualifications of the expert and the subject matter on which the expert is expected to testify and to state the substance of facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(3) The obtaining of admissions as to, or stipulations of, facts not in dispute, the authenticity of documents, or other matters which might properly shorten the hearing.

(4) The limitation of the number of witnesses.

(5) The discovery or production of data, including the production of medical or psychological records when the respondent places his or her medical or psychological condition in issue in the case.

(6) Such other matters as may properly be dealt with to aid in expediting the prompt and orderly conduct and disposition of the proceeding.

Section 3.25 Authority of Hearing Committee, Hearing Panel, or Special Hearing Officer at Prehearing Conferences

The person presiding at any prehearing conference may make rulings as to procedural matters which the committee would be authorized to rule upon during the course of the proceeding and which it appears may appropriately and usefully be disposed of at an early stage. In addition, where it appears that the proceeding would be substantially expedited by distribution of proposed exhibits reasonably in advance of the hearing session, the person presiding may, with due regard for the convenience of the respondent and Bar Counsel, direct such advance distribution by a prescribed date.

Section 3.26 Rulings of Hearing Committee, Hearing Panel, or Special Hearing Officer at Prehearing Conferences

The rulings made at such conference shall control the subsequent course of the hearing, unless modified by the Board chair for good cause shown.

Section 3.27 Appearances

The hearing committee, hearing panel, or special hearing officer shall cause to be entered upon the record all appearances, with a notation in whose behalf each appearance is made.

Section 3.28 Order of Procedure

In proceedings upon a petition for discipline Bar Counsel shall have the burden of proof by a preponderance of the evidence, shall initiate the presentation of evidence, and may present rebuttal evidence. The respondent shall have the burden of proof by a preponderance of the evidence on affirmative defenses and matters in mitigation.

Section 3.29 Presentation by the Parties

(a) General Rule. Respondent and Bar Counsel shall have the right to present evidence, cross-examine, object, argue, and make appropriate motions. The hearing and other proceedings shall proceed with all reasonable diligence and with the least practicable delay.

(b) Objections. When objections to the admission or exclusion of evidence or other procedural objections are made, the grounds relied upon shall be stated briefly, if so requested by the hearing committee, hearing panel, or special hearing officer, and may be stated briefly if no such request is made. Formal exceptions are unnecessary.

Section 3.30 Limiting Number of Witnesses

The hearing committee, hearing panel, or special hearing officer may limit appropriately the number of witnesses who may be heard upon any issue to eliminate unduly repetitious or cumulative evidence without prejudice to the substantive rights of any party.

Section 3.31 Additional Evidence

At the hearing, the hearing committee, hearing panel, or special hearing officer may, if deemed advisable, and subject to appropriate order to protect the substantive rights of any party, authorize any party to file specific documentary evidence as a part of the record within a fixed time, expiring not less than ten days before the date fixed for filing and serving briefs.

Section 3.32 Motions

Motions made during the hearing shall be filed with the Board, with a copy provided to each member of the hearing committee or hearing panel, or to the special hearing officer, and shall be served upon the opposing party, who shall have such time to respond as the hearing committee, hearing panel, or special hearing officer allows. The hearing committee, hearing panel, or special hearing officer shall determine all such motions, except motions to dismiss filed by a respondent which shall be forwarded to the Board with the hearing committeeís, hearing panelís, or special hearing officerís report and the record at the conclusion of the proceedings.

Section 3.33 Transcript

(a) General Rule. Except as may be ordered by the hearing committee, hearing panel, or special hearing officer for good cause shown, hearings shall be reported by a reporter designated by the office of the Board or by the chair of the committee hearing the case. A transcript of the proceedings shall be a part of the record. Such transcript shall include a verbatim report of the hearings including oral argument, if any, and nothing shall be omitted therefrom, except as may be directed on the record by the hearing committee, hearing panel, or special hearing officer. After the closing of the record, there shall not be received in evidence or considered as part of the record any document submitted after the close of testimony except as provided in Section 3.31 of these Rules.

(b) Waiver of Transcript. By agreement of Bar Counsel, the respondent or the respondentís counsel and the hearing committee, hearing panel, or special hearing officer, a transcript of the proceedings may be waived and in that event the stenographic notes or other recording shall be a part of the record.

(c) Order by Board for Transcript. Notwithstanding a waiver pursuant to paragraph (b) of this section, the Board may in its discretion direct that a transcript be prepared.

Section 3.34 Transcript Corrections

Corrections in the official transcript may be made only to make it conform to the evidence presented at the hearing. No corrections or physical changes shall be made in or upon the official transcript of the hearing, except as provided in this section. Transcript corrections agreed to by all parties shall be made on the transcript by the special hearing officer or the hearing committee or panel chair, if and when approved by the hearing committee, hearing panel, or special hearing officer, at any time during the hearing or after the close of the hearing, as may be permitted by the hearing committee, hearing panel, or special hearing officer, but not less than ten days in advance of the time fixed for filing briefs. The hearing committee, hearing panel, or special hearing officer may call for the submission of proposed corrections and may make disposition thereof at appropriate times during the course of a proceeding.

Section 3.35 Copies of Transcripts

The Board will obtain an original of the transcript. A respondent desiring a copy of such transcript may obtain such copy at his or her own expense from the official reporter. Any witness may obtain from the official reporter at his or her own expense a copy of the transcript of his or her own testimony.

Section 3.36 Oral Examination

Witnesses shall be examined orally under oath or affirmation unless the testimony is taken by deposition as provided in Section 4.6 of these Rules or the facts are stipulated in the manner provided in Section 3.24 of these Rules or in Section 3.38 of these Rules.

Section 3.37 [Reserved]

Section 3.38 Presentation and Effect of Stipulations

Independently of the orders or rulings issued as provided by Section 3.24 of these Rules, the parties may stipulate as to any relevant matters of fact or the authenticity of any relevant documents. Such stipulations may be received in evidence at a hearing, and when so received shall be binding on the parties with respect to the matters therein stipulated.

Section 3.39 Admissibility of Evidence

In any proceeding the admissibility of evidence shall be governed by the Rules of Evidence observed in adjudicatory proceedings under Chapter 30A of the General Laws (State Administrative Procedure).

Section 3.40 Reception and Ruling on Evidence

The hearing committee, hearing panel, or special hearing officer shall rule on the admissibility of all evidence. The number of witnesses to be heard on any issue may be limited appropriately as provided in Section 3.30 of these Rules.

Section 3.41 Copies of Exhibits to Parties, Special Hearing Officers, and Hearing Committee or Panel Members

Except as otherwise provided in these Rules, when exhibits of a documentary character are offered in evidence, copies shall be furnished to the parties present at the hearing, and copies of each exhibit of documentary character shall be furnished for the use of the special hearing officer and for each member of the hearing committee or hearing panel, unless the parties and the hearing committee, hearing panel, or special hearing officer waive the receipt of such copies.

Section 3.42 Oral Argument

At the close of the taking of testimony in each proceeding, the hearing committee, hearing panel, or special hearing officer may hear oral argument on the issues in the proceeding.

Section 3.43 Time for Filing of Briefs

Unless waived by the parties and the hearing committee, hearing panel, or special hearing officer at the close of the hearing, briefs may be filed with the hearing committee, hearing panel, or special hearing officer and served pursuant to Section 3.9 of these Rules at such times as may be fixed by the chair thereof.

Section 3.44 Content and Form of Briefs

(a) General Rule. Briefs should normally contain:

(1) A concise statement of the case.

(2) A discussion or statement of the evidence relied upon by the party filing, with specific reference to the pages of the record or exhibits where such evidence appears.

(3) Proposed findings and conclusions together with the reasons and authorities therefor, separately stated.

(b) Exhibits. Exhibits shall not be reproduced in the brief, but may, if desired, be reproduced in an appendix to the brief.

Section 3.45 Filing and Service of Briefs

Briefs not filed and served on or before the date fixed therefor shall not be accepted for filing except by special permission of the hearing committee, hearing panel, or special hearing officer. Except where filing of a different number is permitted or directed by the hearing committee, hearing panel, or special hearing officer, a copy of each brief shall be furnished for the use of each member of the committee or panel.

Section 3.46 Filing of Report

The hearing committee, hearing panel, or special hearing officer shall report promptly to the Board its findings, conclusions and recommendations, together with a record of the proceedings before it.

Section 3.47 Contents of Report

The report of the hearing committee, hearing panel, or special hearing officer shall be accompanied by Form BBO-11 and shall set forth:

(1) A concise statement of the case, including a citation of each rule of the Disciplinary Rules found to have been violated by the respondent;

(2) Its rulings on admission of evidence and other procedural matters, which may be set forth by reference to the pages of the transcript wherein such rulings are recorded;

(3) Findings of fact;

(4) Conclusions of law; and

(5) Recommended disposition of the petition.

Section 3.48 Report a Part of the Record

All reports shall become a part of the record.

Section 3.49 Service of Report

All reports shall be filed with the Board, which shall serve copies thereof upon respondent and Bar Counsel.
 

SUBCHAPTER D. REVIEW BY BOARD

Section 3.50 Procedure on Appeal

(a) Procedure to Object to Report of Hearing Committee, Hearing Panel, or Special Hearing Officer. Any party objecting to the findings or recommendations of a hearing committee, hearing panel, or special hearing officer shall, within 20 days after the service of a copy of the report or within such other longer or shorter time as may reasonably be fixed by a Board member, file a brief on appeal. A brief opposing the appeal, and raising any cross-appeal, may be filed in response to a brief on appeal within 20 days after the filing of a brief on appeal or within such other longer or shorter time as may reasonably be fixed by a Board member. If a cross-appeal is claimed in a brief opposing the appeal, the party filing the original appeal may file a brief in response to the cross-appeal within 20 days after the filing of the cross-appeal or within such other longer or shorter time as may reasonably be fixed by a Board member. No further response will be entertained unless allowed or requested by the Board or a Board member.

(b) Oral Argument. Oral argument shall be deemed waived unless expressly requested in a brief on appeal or brief opposing appeal. The Board or the Appeal Panel may order that oral argument be held and may restrict the issues which may be argued orally.

(c) Waiver of Objections. A party will be conclusively deemed to have waived all objections to the findings, conclusions and recommendations of the hearing committee, hearing panel, or special hearing officer and to have stipulated to the waiver of oral argument and submission of briefs unless the party files an appeal as provided in subsection (a) of this section.

(d) Assignment of Appeals. If there is an appeal from the findings and recommendations of a hearing committee, hearing panel, or special hearing officer, the Board shall either hear the matter itself or assign it to an appeal panel of three members of the Board to be designated by the Board or the Chair of the Board.

(e) Procedure Before an Appeal Panel of the Board. If a matter is heard before an appeal panel of the Board, such panel may determine the matter upon the record and the briefs before it or after any oral argument or may remand the case to the hearing committee, hearing panel, or special hearing officer for the taking of further evidence. The appeal panel shall promptly report its findings of fact, conclusions of law and recommendations to the Board. Such report shall be served upon the Bar Counsel and the respondent, either of whom may, within seven days thereafter, file with the Board objections to such report. Opposition to such objections may be filed with the Board within seven days after the service of said objections on the opposing party.

(f) Review of the Appeal Panel Report by the Board. Following the filing of a panel report and the expiration of the time allowed for the filing of objections thereto, the Board shall review the matter on the entire record including previously filed briefs and objections. Members of the panel shall not be disqualified from participation in the deliberations and voting of the Board. The Board may remand the matter to the hearing committee, the hearing panel, or the special hearing officer for the taking of further evidence.

(g) Procedure on Appeal When the Matter Has Been Heard by a Hearing Panel of the Board. If an appeal has been filed from the findings and recommendations of a hearing panel of the Board, the Board may determine such appeal on the record and briefs before it or after any oral argument that it in its own discretion deems necessary. Members of the panel shall be disqualified from participation in the deliberations and voting of the Board. The Board may remand the matter to the hearing panel for the taking of further evidence.

Section 3.51 Content and Form of Briefs on Appeal

(a) Briefs on Appeal.

(1) The briefs on appeal shall contain:

(i) A short statement of the case.  
(ii) A summary of the basic position of the party filing.  
(iii) The grounds upon which the appeal rests.  
(iv) The argument in support of the appeal with appropriate references to the record and legal authorities.

(2) There may also be included specific findings and conclusions proposed in lieu of those from which the appeal is being taken and any proposed additional findings and conclusions.

(3) Appeal from a recommended disposition shall specify the portions thereof from which the appeal is being taken, and may set forth a disposition suggested in lieu of that recommended by the hearing committee, hearing panel, or special hearing officer.

(b) Briefs Opposing Appeals. Briefs opposing appeals shall generally follow the same style prescribed for briefs on appeal, but may omit a statement of the case so far as it is correctly stated in the brief on appeal.

(c) Copies. Fifteen copies of each brief shall be filed with the Board in addition to the copies served on the parties.

Section 3.52 Review by Board When There Has Been No Appeal

When the time for filing an appeal under Section 3.50 has expired and neither the Bar Counsel nor the respondent has filed an appeal with the Board, the Board shall review the case. In the event the Board makes a preliminary determination that the decision of the hearing committee, hearing panel, or special hearing officer should not be affirmed, it shall give the parties appropriate notice thereof and an opportunity to file briefs, and the Board may then proceed to take such action as it could have taken had an appeal been filed.

Section 3.53 Action by Board

The Board shall review and may adopt the findings of fact made by the hearing committee, hearing panel, or special hearing officer or revise any findings which it determines to be erroneous, paying due respect to the role of the hearing committee, hearing panel, or special hearing officer as the sole judge of the credibility of the testimony presented at the hearing. The Board may adopt or modify the recommendation of the hearing committee, hearing or appeal panel, or special hearing officer. Whenever the Board modifies the findings or recommendations, it shall state the reasons therefor in its vote or in a memorandum.

Section 3.54 Recusal of Reviewing Board Member

The Board member or members, if any, who participated pursuant to Section 2.8 of these Rules in the decision to institute formal proceedings shall not participate in any subsequent consideration or decision of the matter. The Chair shall not be disqualified from subsequent consideration or decision of a matter solely on the ground that he or she ruled on a motion or an appeal in his or her capacity as Chair .

Section 3.55 Dismissal of Proceeding

In the event that the Board determines that a proceeding should be dismissed, it shall so notify the parties and Bar Counsel shall notify the complainant.

Section 3.56 Admonition and Public Reprimand

(a) Notice to Respondent. In the event that the Board determines that the proceedings should be concluded by admonition or public reprimand, it shall serve a copy of the vote and memorandum (if any) on the parties. The vote and memorandum shall constitute the admonition or public reprimand. In the event that the court orders an admonition or a public reprimand, the order of the court shall constitute the admonition or public reprimand.

(b) Permanent Record. A permanent record shall be made of the fact of and basis for the admonition or public reprimand. The fact of the receipt of an admonition or public reprimand shall not affect the good standing of the respondent as a lawyer.

(c) Confidentiality of Admonition. The Board and the bar counsel shall keep the fact of the receipt of an admonition confidential; provided, however, that in response to specific inquiry as to the outcome of a public hearing which has been concluded by admonition , the Board or Bar Counsel may disclose that an admonition was imposed. The admonition shall be subject to limited disclosure under Supreme Judicial Court Rule 4:01, Section 20(2).

Section 3.57 Demand for Filing of Information

In the event the respondent or Bar Counsel is unwilling to accede to the determination of the Board that the matter should be concluded by admonition or by public reprimand, or in the event that Bar Counsel is unwilling to accede to the determination of the Board that the matter should be concluded by dismissal, the party aggrieved may demand that the Board file an Information. The demand shall be in writing and shall be filed with the Board within 20 days after the date of service of the Board's vote and memorandum, which time limit is jurisdictional.

Section 3.58 Filing an Information

In the event that the Board shall determine that the matter should be concluded by suspension or disbarment, or in the event the respondent or Bar Counsel files a written demand for the filing of an Information as authorized by section 3.57 of these rules, the Board shall file with the Clerk of the Supreme Judicial Court for Suffolk County an Information, together with the entire record of its proceedings.

SUBCHAPTER E. REOPENING OF RECORD

Section 3.59 Reopening on Application of Party

(a) Petition to Reopen. At any time after the conclusion of a hearing in a proceeding, and before a report has been issued, any party may file with the hearing committee, hearing panel, or special hearing officer a petition to reopen the proceeding for the purpose of taking additional evidence. If a petition to reopen is filed after the issuance of a report by the hearing committee, hearing panel, or special hearing officer, it shall be filed with the Board. Such petition shall set forth clearly the material changes of fact or of law alleged to have occurred since the conclusion of the hearing or other good cause justifying reopening the hearing.

(b) Responses. Within ten days following the service of such petition, any other party may file an answer thereto, and in default thereof shall be deemed to have waived any objection to the granting of such petition.

(c) Action on Petition. As soon as practicable after the filing of responses to such petitions or default thereof, as the case may be, the hearing committee, hearing panel, the special hearing officer, or the Board shall grant or deny such petition. There shall be no hearing on such petition unless the hearing committee, hearing panel, the special hearing officer, or the Board shall so direct.

Section 3.60 Reopening by Hearing Committee or Panel

At any time prior to the filing of its report a hearing committee, hearing panel, or special hearing officer may reopen the proceeding sua sponte to receive further evidence there is reason to believe that facts or law require, or that the public interest requires, the reopening of such proceeding.

Section 3.61 Reopening by Board Action

At any time prior to the issuance by the Board of its decision in a proceeding, the Board may, without motion, reopen the proceeding and remand to a hearing committee, hearing panel, or special hearing officer to receive further evidence if the Board has reason to believe that conditions of fact or law have so changed as to require, or that the public interest requires, the reopening of such proceeding.
 

SUBCHAPTER F. REINSTATEMENT

Section 3.62 Procedure on Petitions for Reinstatement Generally

The Board will assign a reinstatement petition for hearing upon receipt of (a) a copy of the petition from the Clerk of the Supreme Judicial Court for Suffolk County; (b) four fully completed copies of the reinstatement questionnaire set out in section 3.63; and (c) the costs deposit required under section 3.64.

Section 3.63 Reinstatement Questionnaire

The petitioner shall set forth, fully and accurately under the penalties of perjury, the information requested in the reinstatement questionnaire set out as an appendix to these rules. The questionnaire shall become a part of the record in the reinstatement proceedings.

Section 3.64 Costs Deposit

The reinstatement questionnaire shall be accompanied by a deposit of $500 for costs. No hearing shall be scheduled until the costs deposit is paid in full.

Section 3.65 Hearing Procedures

The provisions of these Rules applicable to formal proceedings shall, so far as relevant, govern the procedures before hearing committees, hearing panels, special hearing officers, and the Board upon petitions for reinstatement, except that the petitioner shall have the burden of demonstrating that he or she has the moral qualifications, competency and learning in the law required for admission to practice law in the Commonwealth, and that his or her resumption of the practice of law shall not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest.

Section 3.66 Expenses of Reinstatement Proceedings

The Board may recommend that the Court direct that the petitioner pay all necessary expenses incurred in connection with a petition for reinstatement, including the cost of notices published pursuant to Section 3.67 of these Rules. The expenses a petitioner is required to pay pursuant to this section shall be reduced by the costs deposit payment required by Section 3.64 above.

Section 3.67 Public Notice of Reinstatement Proceedings

Hearings on petitions for reinstatement shall be open to the public. At least two weeks prior to a scheduled hearing, the Board shall cause notices of the filing of the petition and of the time, date, and place of the hearing to be published in a newspaper designated by the Court as an authorized source for the publication of all rules of court and other notices and in newspapers of general circulation serving the community in which the petitioner resides and the community in which the office listed on the petitionerís last registration statement was located.


Appendix Ė Reinstatement Questionnaire

 

 

COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS
OF THE SUPREME JUDICIAL COURT


In Re

 

Application for Reinstatement

as an Attorney at Law

S.J.C. No.

 

REINSTATEMENT QUESTIONNAIRE

In accordance with the provisions of Sections 3.62 and 3.63 of the Rules of the Board of Bar Overseers, the petitioner shall complete four (4) copies of the Reinstatement Questionnaire setting forth fully and accurately the information requested under the pains and penalties of perjury. A copy of the petition for reinstatement, four copies of the questionnaire, and a check in the amount of $500 as a deposit for costs must be filed with the Board at the same time that the petition for reinstatement is filed with the court. The Questionnaire shall become a part of the record in the reinstatement proceeding.

The Board will return the petition for reinstatement to the Court with a recommendation that the petition be dismissed if the petitioner fails to complete and file the Questionnaire with a deposit of $500 within forty-five days after the Board mails the Questionnaire to the petitioner or within such further time, not to exceed ninety days from the dated the questionnaire was transmitted to the petitioner, as the Board allows for good cause shown. Section 3.62(c) of the Rules of the Board of Bar Overseers.

________________________________________

Personal information.

A. Full Name:

B. Current Mailing Address
and Street Address

C. Date of Birth

D. Social Security Number

E. Marital Status:

F. For each of your dependents, state the full name, address, date of birth, and relationship to the petitioner:

G. List each college and law school you attended, dates of attendance, and degree awarded, if any. If no degree was awarded, state reason for leaving institution prior to the award of a degree.

Professional Status

A. List each jurisdiction, court, and tribunal to which you have been admitted to practice with the dates of each admission. State your current status in each jurisdiction listed and state whether or not the jurisdiction was advised of the disciplinary action or transfer to disability inactive status ordered by the Supreme Judicial Court for the Commonwealth of Massachusetts.

B. Describe the misconduct that led to your suspension, disbarment, or resignation from the practice of law. If you were transferred to disability inactive status, describe the physical or mental disability which led to your transfer to disability inactive status. Attach to this Questionnaire a copy of the order of disbarment, suspension, acceptance of resignation, or transfer to disability inactive status entered by the Supreme Judicial Court together with the opinion of the Court or the summary published by the Board of Bar Overseers.

C. Attach to the Questionnaire copies of all orders of reprimand, suspension, disbarment, acceptance of resignation, or transfer to disability inactive status entered by any other jurisdiction or tribunal together with the published opinion or summary.

D. List the names and addresses of all persons who complained or testified against you in the proceeding which resulted in your resignation, disbarment, or suspension in this Commonwealth and in any other jurisdiction or court.

E. If the sanction was imposed following the conviction of a crime, attach a copy of the judgment of conviction. Provide the name and address of your probation or parole officer, if any. If you have been discharged from probation or parole, attach the order or certificate of release.

Conduct since sanction imposed.

A. Describe in detail your occupation or employment during the period of disbarment, suspension, resignation, or disability inactive status, providing:

(1) Name and address of each employer, together with a description of each employment and the dates of each;

(2) If self-employed, name and address of each business or occupation, together with a description of each such business or occupation and the dates of each;

(3) Name and current address of all partners and associates for each business, occupation, or employment;

(4) Gross monthly salary, commissions, or earnings from each employment, occupation, or business.

B. List your monthly income from all other sources, including gifts and loans, and the sources from which all such earnings and income were derived, during the period of your disbarment, suspension, resignation, or disability inactive status, or during the ten (10) years preceding the filing of the petition for reinstatement, whichever is less.

C. List all monthly expenses during the period of your disbarment, suspension, resignation, or disability inactive status, or during the ten (10) years preceding the filing of the petition for reinstatement, whichever is less.

D. Since the date of your disbarment, suspension, resignation, or transfer to disability inactive status, have you commenced proceedings in any capacity in bankruptcy or given an assignment for the benefit of creditors? If so, please give the case name(s), docket number(s), the name and address of assignee, and identify the court(s) where the proceedings related to such action were commenced, and describe the status of each.

E. State whether or not you have filed all State and Federal income tax returns for the previous eight (8) years. Attach to this Questionnaire copies of all Federal income tax returns filed by you or on your behalf in any capacity for eight (8) years preceding the filing of the petition for reinstatement or for all tax years including and since the date of your suspension, disbarment, resignation, or transfer to disability inactive status, whichever is less. State whether or not you will provide to the Board or Bar Counsel upon demand the authorization required by governmental taxing authorities to release the original returns.

F. List and describe all charitable endeavors, community work, and other activities in which you have engaged since your suspension, disbarment, or resignation which you consider relevant to your current moral character and fitness to practice law.

G. List all residences maintained by you during the period of discipline or disability inactive status , with the names and addresses of landlords, if any.

H. Assets:

(1) List all real estate which you owned of record or in which you have or had a beneficial interest at any time from the date of the order of disbarment, resignation, suspension, or transfer to disability inactive status to the present. For each such property, list its location, and current fair market value, or, if disposed of, the fair market value as of the date of the order of discipline or transfer to disability inactive status, the date of its disposition, and the consideration paid.

(2) List all other assets of a value of or exceeding $1,000 to which you have or held title or in which you have had a beneficial interest at any time during the period of disbarment, resignation, suspension, or disability inactive status. For each, identify the nature of the asset, its location, and its current value, or, if disposed of, the value of the asset as of the date of the order imposing discipline or transferring you to disability inactive status, the date of disposition of the asset, and the amount received for it.

I. Financial obligations.

(1) List all your financial obligations as of the date of the filing of the petition for reinstatement. For each such obligation, list the name and address of the creditor or obligee, the amount of the obligation, the date the obligation was incurred, whether the obligation is fixed or disputed, and whether any agreement or judgment exists regarding the obligation. Please attach a copy of any such agreement or judgment. If no writing exists regarding the agreement for payment, please provide the name and address of the individual with whom the agreement was made and set forth the terms of the agreement and the date on which it was made. If the creditor is either the Massachusetts Department of Revenue (DOR) or the Internal Revenue Service (IRS), please provide a release on a form approved by the IRS and the DOR which will permit the Office of Bar Counsel and the Board of Bar Overseers to obtain information regarding your tax or support obligations.

(2) List the names of all financial institutions in which you are or were signatory to accounts, safe deposit boxes, deposits or loans during the period of discipline or disability inactive status, stating the number of each account, box, deposit, or loan; the date each account, box, deposit, or loan was opened, approved, or made; and the date each account, box, or loan was closed, discharged, or paid. Your signature on this Questionnaire shall constitute an authorization to each such institution to respond to requests by Bar Counsel and the Board of Bar Overseers for information regarding the accounts, boxes, or loans.

J. List every civil or administrative action commenced or pending in any jurisdiction during the period of any disbarment or suspension in which you were a party or in which you had or claimed an interest, and for each such action list the date on which it was commenced, the case caption, court, and docket number; names and addresses of attorneys for said parties and of the trial judge or judges; and names and addresses of all witnesses who testified in such actions. Provide a summary of the allegations made in each such action, its final disposition if any, and its current status. If the action was dismissed in connection with a settlement, please state the terms of the settlement and whether the settlement funds have been paid, and, if so, by whom. If judgment entered against you, state the amount of the judgment and whether or not you have paid the judgment.

K. Criminal, administrative, or investigative proceedings.

(1) List every matter involving your arrest or prosecution in any jurisdiction during the period of any disbarment, resignation, suspension, or disability inactive status for any crime, whether felony or misdemeanor, together with the names and addresses of each complaining witness, prosecutor, and trial judge. Identify each charge brought, the disposition of the charge, if any, and its current status.

(2) State whether or not you have been a target of a Federal or State investigation into alleged criminal conduct at any time during the same period and state whether or not you gave testimony or information to any such authority under a grant of immunity. If so, please identify the authority conducting each investigation; the name, title, and address of the prosecutor conducting each investigation; and the date and the matter in which you testified. Attach all proffer agreements and other non-prosecution agreements between you and any State or Federal authority.

L. If you have been incapacitated from employment or from carrying out employment due to any physical or emotional impairment, alcoholism, use of prescription or non-prescription drugs, or other reason since the effective date of the discipline; or if you are seeking reinstatement from an order transferring you to disability inactive status; or if you raised in mitigation during any proceeding regarding your license to practice law or any other profession a claim that your physical or mental condition caused or contributed to the alleged misconduct, describe the nature of the impairment or disability, its effect on your ability to obtain or maintain employment, and the details of treatment sought to address the impairment or disability. Provide the name and address of each institution and provider who has provided or who is providing treatment or consultation to you, the dates of treatment, and your current diagnosis or prognosis. State whether or not you will provide all releases necessary for Bar Counsel and the Board of Bar Overseers to obtain your treatment records.

M. During the period of your disbarment, resignation, suspension, or disability inactive status, have you made any application for reinstatement or original admission as an attorney at law in any jurisdiction, or any application for other license requiring proof of good character for its procurement. For each such application, please state the date of the application, the name and address of the authority to whom it was addressed, whether or not any hearing was held in connection with your application, and the disposition thereof.

N. List all procedures or inquiries held during the period of your disbarment, resignation, suspension, or disability inactive status concerning your standing as a member of any profession or organization, or holder of any license or office, which involved your censure, removal, suspension, revocation of license, or discipline; and as to each such procedure or inquiry, state the dates, facts, and the disposition thereof, and the names and address of the authority in possession of the record thereof.

O. State whether or not any charges of fraud, malpractice, or errors or omissions were made, or claimed, against you during the period of disbarment, resignation, suspension, or disability inactive status, whether formal or informal. For each such charge or claim, state the date it was made, the name and current address of the claimant(s), the substance of the claims or charge, the forum where the charges are being or were considered, if any, and its current status.

P. List all claims paid by the Clientsí Security Board as restitution on your account. As to each claim, list the name of the claimant, the CSB docket number, the amount of the award, the date of the award, and the date of your reimbursement to the Clientsí Security Board. This information may be obtained by calling the Clientsí Security Board at (617) 728-8700.

Q. Describe all financial or other actions taken by you or on your behalf to make restitution or provide other appropriate compensation or payment to persons injured by your professional misconduct. If you have not made restitution, compensation, or payment, please set forth your reasons for not doing so.

R. Give the date(s) you took the MPRE and attach a certification that you obtained a passing score to this Questionnaire.

S. List all courses taken by you since the date of the order imposing discipline or transferring you to disability inactive status to acquire or maintain learning in the law and knowledge of your ethical obligations. As to each, list the name of the course, the school or program sponsoring the course, the date or dates of attendance, and, if applicable, the grade you received in the course. Please attach to the Questionnaire certificates of attendance.

T. List by name and author, if applicable, all periodicals, newspapers, and books to which you have regularly subscribed or which you have read during the period of your disbarment, resignation, suspension, or disability inactive status which you believe have assisted you in acquiring or maintaining learning in the law and knowledge of your ethical obligations.

U. Provide a concise statement of facts to justify your reinstatement to the Bar of this Commonwealth.

V. Provide a statement as to any other matter not previously described in the Questionnaire which should, in the interest of full disclosure, be brought to the attention of the Board of Bar Overseers in considering your petition for reinstatement.

Practice after Reinstatement

A. Describe your plans for practicing law if you are reinstated. Include the nature of the intended practice; the type and volume of cases you intend or expect to handle; the field or fields in which you intend to concentrate, if any; whether you intend to be a sole practitioner or to be associated with others; the intended location of your practice; your intended procedures for docket control and office management; and your intended procedures for maintaining client and other trust funds.

B. Identify by name and address all persons with whom you plan to associate as well as those on whom you intend to rely as mentors, supervisors, monitors, or accountants if you are reinstated. Explain how you expect each person so identified to function or assist you in connection with your practice of law.

C. Describe the efforts you have undertaken to be covered by professional liability insurance if you are reinstated and state the results of those efforts.

D. List names, address, and telephone numbers of three references who would recommend your reinstatement to the Bar of this Commonwealth and who would attest to your character and conduct since disbarment or suspension.

1. ______________________________

2. ______________________________

3. ______________________________

E. State any other pertinent matter which you desire to be either recorded or considered.

I,_________________________________, being duly sworn, say that I have read the foregoing questions and that the answers are true as stated, except as to matters and things, if any, stated on information and belief; and that, as to those matters and things, I believe them to be true.

I hereby attest that I have fully abided by the terms of the order of discipline or disability inactive status; I have not practiced law, identified myself as "Esq." or "Esquire," or otherwise held myself out as an attorney during the term of my disbarment, resignation, suspension, or disability inactive status; I have not listed myself as a lawyer on any sign, letterhead or stationery, or in any directory, or in any electronic or computer-accessed media; I have not engaged in paralegal work during the term of my disbarment, resignation, suspension, or disability inactive status; and I have not been employed by a lawyer in any capacity during said term, except as authorized by the Supreme Judicial Court on [date] or as described above.

I authorize all providers who have examined or treated me and all institutions in which I have been examined or treated for any physical or mental disorder or addiction since the date of the order imposing discipline or transferring me to disability inactive status to provide to agents and employees of the Office of Bar Counsel and the Board of Bar Overseers all hospital and medical records, reports, treatment notes, and information regarding care, consultation, evaluation, diagnosis and prognosis, and I will cooperate with the Office of Bar Counsel and the Board of Bar Overseers in providing such further information and authorizations as required to release information to the Office of Bar Counsel and the Board of Bar Overseers.

I further authorize all financial institutions listed in response to question 3(I)(2) to provide to agents or employees of the Office of Bar Counsel and the Board of Bar Overseers copies of statements of account, canceled checks, box records, and loan records, and I will cooperate with the Office of Bar Counsel and the Board of Bar Overseers in providing such further information and authorizations as required to release information to the Office of Bar Counsel and the Board of Bar Overseers..

 

______________________________
(signature)

Sworn to and subscribed before me this _____ day of __________, 20__.

 

 

______________________________
Notary Public (SEAL)

My commission expires:

Last Updated 2/28/2000



 
 
CHAPTER 4. MISCELLANEOUS MATTERS
 

SUBCHAPTER A. RESIGNATIONS

Section 4.1 Resignation by Lawyers under Disciplinary Investigation

A lawyer who wishes to resign in accordance with Supreme Judicial Court Rule 4:01, Section 15, shall file a request for resignation and an affidavit with the Board. The Board shall serve the request and affidavit on Bar Counsel, who shall within seven days, or such further time as may be allowed by a Board member, file with the Board a statement containing Bar Counselís recommendation and the reasons therefor, such statement to be served upon the respondent.

The Board may order any hearing or investigation it deems appropriate. Upon reaching its determination, the Board shall file its recommendation and the entire record of any hearing held with the Court.

SUBCHAPTER B. EXPUNCTION

Section 4.2 Expunction of Records

(a) Expunction Upon the Expiration of Six Years. The records of a grievance against a lawyer which has been closed and not subsequently reopened, and the records of a complaint against a lawyer which has been dismissed and not subsequently reopened, shall be destroyed and expunged following the expiration of six years from the date the grievance was closed or the complaint dismissed unless a grievance or complaint has been filed in the intervening six-year period. In the event a grievance or complaint is so filed or reopened, the records shall not be destroyed and expunged until the expiration of six years from the date on which all grievances have been closed and not reopened and all complaints have been dismissed and not reopened.

(b) Reserved.

(c) Expunction for Bank Error. In the event a grievance has been docketed solely on account of a report made by a financial institution that it has dishonored an instrument presented against a lawyer's trust account and it is established that the instrument was dishonored solely due to error on the part of the financial institution, the lawyer shall be entitled, upon request made after the closing of the grievance, to have the records of the grievance destroyed and expunged.

(d) Procedure. Whenever, pursuant to the preceding subparagraphs (a) and (c), records are to be destroyed and expunged, Bar Counsel shall destroy all records within Bar Counsel's custody and control that indicate that the grievance or complaint was filed against the lawyer, and shall destroy all records and files pertaining thereto. Bar Counsel may separately maintain any investigative records that may pertain to matters other than the specific grievance or complaint against the lawyer, but such records shall not bear any indication of the specific grievance or complaint expunged.

(e) Nonapplicability. This section does not apply to the records of a complaint which gave rise to an admonition even if such complaint has been dismissed pursuant to Section 4.3(a) of these Rules.

SUBCHAPTER C. VACATING AN ADMONITION

Section 4.3 Vacating an Admonition and Dismissal of the Underlying Complaint

(a) Vacating and Dismissal Upon the Expiration of Eight Years. Upon the expiration of eight years from the receipt of an admonition by a lawyer, if Bar Counsel determines that there has been no intervening disciplinary action taken with reference to the lawyer and there is no grievance or complaint then pending against him or her, Bar Counsel shall vacate the admonition and dismiss the complaint which gave rise to it.

SUBCHAPTER D. SUBPOENAS

Section 4.4 Investigatory Subpoenas

(a) At any stage of the investigation, Bar Counsel may request that the Board issue a subpoena requiring the attendance and testimony of a witness, including the respondent, and the production of any evidence, including books, records, correspondence or documents, relating to any matter in question in the investigation.

(b) The request shall be made in writing to a member of the Board, who may forthwith issue the subpoena.

(c) The subpoena shall require a witness to appear before Bar Counsel at a specified date and time and shall specify any evidence to be produced. Bar Counsel may take the testimony electronically or otherwise. Respondent shall not be entitled to be present, but Bar Counsel shall provide respondent with a copy of any recorded testimony prior to any hearing on a petition for discipline.

(d) If a subpoena is issued subsequent to the filing of a petition for discipline and if the testimony is to be recorded electronically or otherwise, the respondent shall be entitled to be present and participate in the examination of any such witness whose testimony is to be recorded and in the examination of any documents produced by such subpoena.

Section 4.5 Hearing Subpoenas

(a) Bar Counsel and the respondent may request that the hearing committee, hearing panel, or special hearing officer or the Board issue a subpoena requiring the attendance and testimony of a witness, including the respondent, and the production of any evidence, including books, records, correspondence or documents, relating to any matter in question in the proceeding.

(b) The request shall be made in writing to a member of the hearing committee or panel, or to the special hearing officer, or to a member of the Board who may forthwith issue the subpoena.

(c) The subpoena shall require a witness to appear before the Board, a hearing panel, the hearing committee, or the special hearing officer, or at a deposition conducted pursuant to Sections 4.9 to 4.16 of these rules, at a specified date and time and shall specify the evidence, if any, to be produced.

(d) The Board, the hearing committee, hearing panel, or special hearing officer may, on its own motion, subpoena any witness to appear and give testimony or produce evidence at any hearing.

Section 4.5A Reciprocal Subpoenas

(a) Whenever a subpoena has been duly approved under the law of another jurisdiction for use in lawyer discipline or disability proceedings, Bar Counsel may request that the Board issue a subpoena requiring the attendance and testimony of the witness in this Commonwealth and the production of any evidence, including books, records, correspondence or documents, relating to the matter in question.

(b) The request shall be made in writing to a member of the Board, who may forthwith issue the subpoena.

(c) The subpoena shall require a witness to appear before Bar Counsel at a specified date and time and shall specify any evidence to be produced. Bar Counsel may take the testimony electronically or otherwise.

Section 4.6 Service

Each subpoena issued in accordance with this subchapter shall be served in the manner provided for service of summonses in the Courts of the Commonwealth. Alternatively, service may be made upon any lawyer in hand or by certified, registered, or first class mail addressed to the lawyer at either the residence or office address furnished in the last registration statement filed by the lawyer in accordance with S. J. C. Rule 4:02. A copy of each investigative subpoena served on a person other than the respondent shall be mailed to the respondent. No witness fee or travel allowance shall be paid or tendered to any respondent subpoenaed hereunder.

Section 4.7 Confidentiality of Investigatory Subpoenas

(a) Each investigatory subpoena shall clearly indicate on its face that it is issued in connection with a confidential investigation under Bar Disciplinary Rules of Chapter Four of the Supreme Judicial Court, and the Board and the Office of Bar Counsel will conduct themselves so as to maintain the absolute confidentiality of the investigation.

(b) Each subpoena shall state on its face that a person subpoenaed may consult with counsel.

(c) Whenever records of a lawyer's clients' trust fund account are subpoenaed, all steps necessary to maintain the confidentiality to which clients are entitled shall be taken by Bar Counsel and the Board, hearing committee, hearing panel, or special hearing officer.

Section 4.8 Motions to Quash

A motion to quash any subpoena issued hereunder may be filed with the Board. The motion shall state the grounds on which it is based, and any fact alleged shall be supported by affidavit filed with the motion. The motion and affidavit shall be served upon the respondent or Bar Counsel or both as the case may be, who shall within seven days after receipt thereof file any opposition thereto with the Board. The motion shall be promptly decided by the Chair of the Board, the Chair of the hearing committee or the hearing panel, or the special hearing officer, either upon the documents or after any hearing held.

SUBCHAPTER E. DEPOSITIONS WHEN PERSONAL APPEARANCE IMPRACTICAL

Section 4.9 Depositions

(a) General Rule. Where appropriate, testimony may be taken within or without the Commonwealth by deposition or by commission.

(b) Procedure on Deposition. No deposition may be received in evidence if it is taken without the approval of the Board or the hearing committee, hearing panel, or special hearing officer to which a proceeding has been referred.

(c) Approval of Hearing Committee, Hearing Panel, or Special Hearing Officer. Such hearing committee, hearing panel, or special hearing officer shall approve the taking of testimony by deposition in those cases where the witness is not subject to service of subpoena or is unable to attend or testify at the hearing because of age, illness or other infirmity. The complete record of the testimony so taken shall be made and preserved.

(d) Deposition to Preserve Testimony. If at any stage of the investigation it appears that a prospective witness may no longer be subject to service of a subpoena or may become unable to attend or testify at a hearing because of age, illness or other infirmity, Bar Counsel or the respondent may request that the Board order a deposition to preserve the testimony of the witness. The request shall be made in writing to the Board Chair. If the Chair deems it to be in the interest of justice that the testimony of the prospective witness be taken and preserved, he or she shall order that the testimony of the witness be taken by deposition and that any evidence, including books, records, correspondence or documents, relating to any matter in question in the investigation be produced at the same time.

Section 4.10 Notice and Application

Unless notice is waived, or the hearing committee, hearing panel, or special hearing officer specifically directs, no deposition shall be taken except after at least ten days' notice to the parties if the deposition is to be taken within this Commonwealth, and fifteen days' notice when a deposition is to be taken elsewhere. A written notice and application to take evidence by deposition shall be submitted by the party proposing to take such deposition to the other parties and to the hearing committee, hearing panel, or special hearing officer or to the Board. In such notice and application, the party desiring to take the deposition 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, the name and post office address of the notarial officer before whom it is desired that the deposition be taken, and the reason that such deposition should be taken. The other parties may, within the time stated in this section, make any appropriate response to such notice and application.

Section 4.11 Authorization of Taking Deposition

If an application for the taking of a deposition so warrants, within a reasonable time in advance of the time fixed for taking testimony, the hearing committee, hearing panel, or special hearing officer or the Board will issue and serve upon the parties an authorization form naming the witness whose deposition is to be taken, and the time, place and notarial officer before whom the witness is to testify, but such time, place and notarial officer so specified may or may not be the same as those named in the notice and application.

Section 4.12 Officer Before Whom Deposition is Taken

(a) Within the United States. A deposition may be taken before a single member of the hearing committee or hearing panel, or before the special hearing officer, or before a person authorized under either Section 2(a) or Section 2(b) of Rule 1:02(A) of the Supreme Judicial Court insofar as these sections deal with depositions to be taken within the United States or before any other person authorized to administer oaths not being counsel for any of the parties, or interested in the proceeding or investigation, according to such designation as may be made in the authorization form.

(b) In Foreign Countries. Where such deposition is taken in a foreign country, it may be taken before a secretary of an embassy or legation, consul general, consul, vice-consul or consular agent of the United States or before such persons as authorized by Section 2(b) of Rule 1:02(A) of the Supreme Judicial Court insofar as this section deals with depositions to be taken in foreign countries, or before such person or officer as may be designated in the authorization form or agreed upon by the parties by stipulation in writing filed with and approved by the hearing committee, hearing panel, or special hearing officer.

Section 4.13 Oath and Reduction to Writing

(a) General Rule. Every person whose testimony is taken by deposition shall be sworn, or shall affirm concerning the matter about which he or she shall testify, before any questions are put or testimony given. The testimony shall be reduced to writing by the notarial officer, or under the notarial officerís direction. When the testimony is fully transcribed the deposition shall be submitted to the witness for inspection and signing and shall be read to or by the witness and shall be signed by the witness, unless the inspection, reading and signing are waived by the witness and by all parties who attended the taking of the deposition, or the witness is ill or cannot be found or refuses to sign. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the notarial officer with a statement of the reasons given by the witness for making the changes. If the deposition is not signed by the witness, the notarial officer shall certify it in the usual form and state on the record the fact of the waiver or of the illness or absence of the witness or the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless the hearing committee, hearing panel, or special hearing officer or the Board holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(b) Transmission. Unless otherwise directed in the authorization form, after the deposition has been certified, it shall, together with the number of copies specified in the authorization, the copies being made by such notarial officer or under the notarial officerís direction, be forwarded by such notarial officer in a sealed envelope addressed to the office of the Board at Boston, Massachusetts, with sufficient stamps for postage affixed. Upon receipt thereof, the Board shall file the original in the proceeding and shall forward a copy to each party, the special hearing officer, and to each member of the hearing committee or panel.

Section 4.14 Scope and Conduct of Examination

Unless otherwise directed in the authorization form, the witness 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 by the notarial officer shall include argument or debate. Objections to questions or evidence shall be noted by the notarial officer upon the deposition, but the notarial officer shall not have the power to decide on the competency, materiality or relevancy of the evidence. Objections to the competency of a witness or 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.

Section 4.15 Status of Deposition as Part of Record

No part of a deposition shall constitute a part of the record in the proceeding, unless offered in evidence before the hearing committee, hearing panel, or special hearing officer. At the hearing, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof. If only part of a deposition is offered in evidence by a party, a party with an adverse interest may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. The introduction in evidence of the deposition or any part thereof for any purpose other than contradicting or impeaching the witness makes the person deposed the witness of the party introducing the deposition.

Section 4.16 [Reserved]

SUBCHAPTER F. NOTIFICATION OF DISBARMENT, RESIGNATION, SUSPENSION, TEMPORARY SUSPENSION, OR DISABILITY INACTIVE STATUS

Section 4.17 Form of Notification

(a) A lawyer who has been disbarred, suspended, temporarily suspended, or placed on disability inactive status, or a lawyer who has resigned pursuant to the provisions of section 15 of Supreme Judicial Court Rule 4:01, shall
  Complete and send to each court or agency in which the lawyer appears for any party a copy of the form Notification to Court or Agency prepared by the Board.

Complete and send to all clients being represented in pending matters and to all wards, heirs, and beneficiaries for whom the lawyer serves as guardian, executor, administrator, trustee, attorney-in-fact, or other fiduciary a copy of the form Notification to Clients, Wards, Heirs, and Beneficiaries prepared by the Board.

Complete and send to the lawyer or lawyers for each party in each pending litigation matter or administrative proceeding a copy of the form Notification to Counsel in Litigation Matters prepared by the Board.

(b) A notice substantially in the language of the form prepared by the Board may be used in lieu of a copy of the form.

Section 4.18 [Reserved]

Section 4.19 [Reserved]

Section 4.20 Affidavit of Compliance

The affidavit of compliance required by S.J.C. Rule 4:01, Section 17(5), shall be submitted on the form Affidavit of Compliance prepared by the Board or in substantially the language that form.
 
 


 

CHAPTER 5. ORGANIZATION AND ADMINISTRATION
 

SUBCHAPTER A. THE BOARD OF BAR OVERSEERS

Section 5.1 Meetings of the Board

(a) Call and Notice. Meetings shall be held upon the call in writing of the Chair or of any two members of the Board at any place in the City of Boston designated for such purpose by resolution of the Board or in the absence of such resolution as designated by the Chair. Notice of special meetings shall be given in person or by telephone or telegraph to each member of the Board (at the address furnished to the office of the Board for that purpose) at least 24 hours prior to the time fixed for the special meeting. Notice of a special meeting may be waived in writing and shall be waived by attendance at the meeting.

(b) Organization. The Chair shall preside at meetings of the Board. In his or her absence, disqualification, or recusal, one of the following persons in the order stated shall preside or rule, as the case may be:

(1) The Vice-Chair.

(2) An Acting Chair selected by the Board for such purpose.

Section 5.2 Conference Telephone Meetings

One or more members of the Board may participate in a meeting of the Board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this section shall constitute presence in person at such meeting.

Section 5.3 Agenda

An agenda for each meeting of the Board shall be prepared by the Chair, or in his or her absence by the Vice-Chair or Acting Chair.

Section 5.4 Members not to be Voluntary Character Witnesses

No member of the Board shall appear voluntarily as a character witness in a disciplinary proceeding.

SUBCHAPTER B. ADMINISTRATION

Section 5.5 The Administrator

The Board shall appoint an Administrator who shall perform the duties assigned by the Board and imposed by these Rules.

Section 5.6 Communications and Filings Generally

(a) General Rule. All communications to the Board and pleadings should be addressed to the Board at its office. Except as authorized by sections 2.8(a)(2) and 2.9(b)(4) of these rules, parties shall not communicate regarding a disciplinary matter with members of the Board, hearing committee members, or special hearing officers on an ex parte basis. All communications should clearly designate the file number, or similar identifying symbols, if any, employed by the Board or Bar Counsel, and should set forth a short title, the address of the person communicating, the party represented, and how responses should be sent if not by first class mail.

(b) Pleadings. All pleadings and other documents filed pursuant to any provisions of Chapter 3 of these Rules shall comply with the applicable provisions of such section.

(c) Transmission of Grievances.

(1) Except as otherwise provided in this subsection, all grievances received by the Board against lawyers shall be transmitted forthwith to the Bar Counsel.

(2) Grievances received against Bar Counsel, Assistant Bar Counsel or any member of the Board or its staff involving alleged violations of the Disciplinary Rules shall be transmitted directly to the Board.

Section 5.7 Dockets

(a) Numbering. Complaints submitted to the Board pursuant to Section 5.6(c)(2) of these Rules shall be assigned a docket number consisting of the letters ďBBOĒ and the last two digits of the calendar year in which the matter is docketed, which shall be preceded by the serial number of the matter in such calendar year, e.g.: 1 BBO 97 et seq.

(b) Petitions for Reinstatement. Petitions for reinstatement shall be docketed to the number assigned by the Supreme Judicial Court

Section 5.8 Records

The Administrator shall maintain permanent records of all matters processed by the Board and the disposition thereof. This paragraph shall not be construed to require the permanent retention of correspondence, transcripts, briefs and other similar documents which underlie the final disposition of a matter by the Board, but shall include the findings of any hearing committee, hearing panel, or special hearing officer and the action and any related opinion or opinions of the Board with respect thereto, and any other information which these Rules expressly require to be made a matter of record.

SUBCHAPTER C. BAR COUNSEL

Section 5.9 Practice of Law by Bar Counsel Prohibited

Bar Counsel, Assistant Bar Counsel, and Board staff shall not engage in private practice, except that the Board may agree to a reasonable period of transition after appointment.

Section 5.10 Retention of Records by Bar Counsel

Subject to the provisions of Supreme Judicial Court Rule 4:01, Section 7(5), and Section 4.2 of these Rules relating to the expunction of certain closed and dismissed matters, Bar Counsel shall maintain permanent records of all matters presented to the Office of the Bar Counsel and the disposition thereof, provided that Bar Counsel need not permanently retain correspondence, memoranda, transcripts and other similar documents which underlie the final disposition of a matter by dismissal or closing.

SUBCHAPTER D. HEARING COMMITTEES

Section 5.11 Service on Other Hearing Committees

Members of any one hearing committee may serve on any other hearing committee in specific cases as need arises as determined by the Board Chair or the Chairís designee.

Section 5.12 Duties of Chair

The Chair of a hearing committee shall be the presiding officer at all hearings held by the committee and, unless otherwise directed by the committee with respect to particular questions or issues, shall make all rulings on admissibility of evidence and other procedural matters arising in connection with formal proceedings.

Section 5.13 Meetings of Hearing Committees

Except as otherwise provided by these Rules, meetings and proceedings of a hearing committee shall be governed insofar as applicable by the provisions of these Rules governing meetings and proceedings of the Board.



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2004. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.