Professional Conduct Rules  Committee on Professional Responsibility for Clerks Rule 8: Formal proceedings

Formal charges issued under Rules 6 or 7 shall be in the form of a detailed, signed complaint that includes a clear statement of the allegations against the Clerk and the alleged facts forming their basis. Where more than one act of misconduct is alleged, each act should be clearly set forth in the complaint. The Committee shall promptly serve the Clerk with a copy of the formal charges, and the Clerk shall have ten days to respond. The appropriate Chief Justice shall be notified of the filing of formal charges. After issuance and before a hearing commences, formal charges may be substantively amended, provided that the Clerk is given notice of the amended charges, twenty one days to respond, and adequate time before the hearing to prepare a defense regarding the amended charges. 

Upon the filing of the Clerk's written response to the formal charges or the expiration of the time for its filing, the formal charges shall become public. The Committee shall designate both a Special Counsel to prepare and present the case and a Hearing Officer to take evidence and report thereon to the Committee. Special Counsel who has been designated at an earlier stage may continue to serve in that capacity. 

1. 

Within ten days after service of the formal charges, the Committee shall make available for inspection to the Clerk all books, papers, records, documents, electronic recordings, and other tangible things within the custody and control of the Committee relevant to any issues in the case, and any written or electronically recorded statement within the custody and control of the Committee that is relevant to the issues in the case. 

2. 

Within thirty days after service of the formal charges, the Special Counsel and the Clerk 

a. 

May, upon written request to the other party prior to the hearing: 

(i) Inspect and copy within a reasonable period of time all books, papers, records, documents, electronic recordings, and other tangible things which the other party intends to present at a hearing. 

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

(iii) Inspect and copy within a reasonable period of time any written or electronically recorded statements made by witnesses who may be called to give testimony at the hearing. 

b. 

May, upon such terms and conditions as the Hearing Officer may impose: 

(i) Depose within or without the Commonwealth persons who may have relevant testimony. The complete record of the testimony so taken shall be made and preserved by stenographic record or electronic recording. The written application to the Hearing Officer shall state the name and post office address of the witness, the subject matter concerning which the witness is expected to testify, the time and place of taking the deposition, and the reason why such deposition should be taken. Unless notice is waived, no deposition shall be taken except after at least seven days' notice to the other parties. Unless otherwise directed by the Committee, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter of the proceedings. Parties shall have the right of cross-examination and objection. In making objections to questions or evidence, the grounds relied upon shall be stated briefly, but no recording filed in the proceeding shall include argument or debate. Objections to questions or evidence shall be noted in the record, but the stenographer or recorder shall not have the power to decide on the competency, materiality or relevancy of evidence. Objections to the competency, relevancy, or materiality of the testimony are not waived by failure to make them before or during the taking of the deposition. 

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

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

3. 

In granting discovery the Hearing Officer shall protect against disclosure the mental impressions, conclusions, opinions, and legal theories of an attorney or other representative of a witness or party in these proceedings. 

4. 

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

1. The Committee shall schedule a hearing to take place in not fewer than thirty nor more than sixty days from the date a written answer is due to the Committee. The Hearing Officer shall immediately notify the Clerk and all counsel of the time and place for the hearing. The Special Counsel and the Clerk may jointly agree to delay the commencement of the hearing. Also, at the request of Special Counselor the Clerk, the hearing officer may extend the date for the hearing. 

2. The hearing shall be conducted by a Hearing Officer chosen by the Committee. The hearing shall be open to the public and recorded. The rules of evidence applicable to civil proceedings in Massachusetts shall apply, and all testimony shall be under oath. Both the Clerk and Special Counsel shall be permitted to introduce evidence and produce and cross-examine witnesses. The Clerk and Special Counsel shall be entitled to compel the attendance and testimony of witnesses, and the production of papers, books, accounts, documents, electronic recordings, other tangible things, and any other relevant evidence or testimony. Formal charges may be amended after the commencement of a hearing only if the amendment is technical in nature and if the Clerk and counsel are given adequate time to prepare a response. 

1. Within thirty days after the conclusion of the hearing, the Hearing Officer shall submit to the Committee, Special Counsel, and the Clerk a report which shall contain findings, the recording of testimony, all exhibits, and a recommendation on discipline. 

2. Unless there is good cause for delay, within sixty days of receipt of the Hearing Officer's report, the Committee shall render a decision on discipline based upon the report of the Hearing Officer. In its discretion, the Committee may allow the Clerk and Special Counsel to submit written objections to the Hearing Officer's findings and recommendation on discipline. The Clerk and Special Counsel may file a request to be heard by the Committee and if either participant so requests, the Committee shall schedule a hearing and give notice to both as to the time and place at least seven days in advance of the hearing. The hearing shall be public but the deliberations of the Committee shall be conducted in executive session. In rendering its decision, the Committee is not required to accept the recommended discipline of the Hearing Officer. The Committee's decision shall contain its reasons, and it may adopt all or part of the findings and conclusions of the Hearing Officer as support for its decision. The Committee shall immediately provide a copy of its decision to the Clerk and to Special Counsel. 

3. The Committee shall not impose any discipline unless the charges have been proven by clear and convincing evidence in the record of the hearing.