Rule 1:20-6. Hearings

(a) Hearing Panels

(1) Hearing Panel Designations; Oversight The chair shall annually determine the composition of hearing panels which shall be administered and advised by the vice chair. Each hearing panel shall consist of only three members, one of whom shall be a public member. The chair shall designate an attorney member as the chair of each panel. An additional attorney member and an additional public member may be designated as alternates to remain available but not to sit and hear the matter unless one of the attorney members or the public member is unable to do so. An attorney member involved in the investigation of a matter shall not serve as a hearing panel member on that matter. The vice chair shall designate a hearing panel to hear the matter after the time prescribed for the filing of an answer and shall notify the presenter and respondent of the designation.

(2) Quorum A quorum shall consist of two attorney members and one public member. The hearing panel shall act only with the concurrence of two. When by reason of absence, disability or disqualification the number of members of the hearing panel able to act is fewer than a quorum, the following procedures will apply:

(A) if the hearing has not commenced, the attorney alternate or another attorney member shall be substituted for the absent attorney or the public member alternate or another public member shall be substituted for the absent public member;

(B) if the hearing has commenced but all evidence has not been received, the vice chair shall designate the attorney alternate or another attorney member or the public member alternate or another public member to permit the orderly conclusion of the proceedings, provided that the member so designated shall have the opportunity to review the entire record including the transcript of the proceedings to date;

(C) if all the evidence has been received, the matter may be determined by the remaining two hearing panel members, provided their decision is unanimous. In the event of disagreement, the vice chair shall designate the attorney alternate or another attorney member or the public member alternate or another public member who, on review of the entire record including the transcript of the proceedings, shall be eligible to vote thereon.

(3) Powers and Duties Hearing panels shall have the following powers and duties:

(A) to conduct hearings on formal charges of unethical conduct and petitions for reinstatement where requested by the Board or the Court;

(B) to submit to the Board written findings or fact, conclusions of law and recommendations, together with the record of the hearing; and

(C) to determine issues of unethical conduct by majority vote, provided a quorum is present.

(4) Powers and Duties of Hearing Panel Chair. Each hearing panel chair shall have the following powers and duties:

(A) to conduct prehearing conferences in accordance with R. 1:20-5(b);

(B) to entertain prehearing motions;

(C) to preside at all hearings; and

(D) to perform such other functions as provided for by these rules or assigned by the Director with the approval of the Supreme Court. Unless relieved by the Supreme Court, a member serving as a trier of fact where testimony has begun at the time the member's term expires shall continue in such matter until its conclusion and the filing of a report.

(b) Special Ethics Masters

(1) Qualifications A retired or recalled judge of this state, a former member of the Disciplinary Review Board, a former member of the Disciplinary Oversight Committee, a former officer of a district ethics committee, or a former chair of a hearing panel may be appointed, with his or her consent, to serve as a special ethics master.

(2) Appointment; Compensation Special ethics masters shall be appointed by, and shall serve at the pleasure of, the Supreme Court under the administration of the Director. Attorneys shall be paid the per diem rate in effect for single arbitrators under R. 4:21A-2(d)(1). The full per diem rate shall be paid for each day of a prehearing conference or hearing, or part thereof, but shall not be paid for separate days for opinion preparation. A reasonable additional amount may be paid for actual typing expenses. Retired judges may serve pro bono or with compensation or, if they are on recall, shall be paid at the rate in effect for judges on recall service.

(3) Designation; Oversight. When , in the judgment of the Director, a hearing may reasonably be expected to take three days or more, or where the case should be heard continuously from day to day until conclusion, or when the Director believes it is in the interest of justice to do so, the Director may request designation of a special ethics master to try the case. An Ethics Committee chair may request the Director to request the appointment of a special ethics master. The Director shall determine the appropriateness of such an appointment pursuant to the above criteria and other relevant considerations, and shall notify the Clerk of the Supreme Court of that determination. Upon receipt of that notification, the Clerk of the Supreme Court shall select a special ethics master from a list of qualified individuals maintained and approved by the Supreme Court. The Director shall render appropriate administrative and legal services to special ethics masters.

(4) Powers and Authority A special ethics master shall have the full power and authority of a hearing panel.

(c) Hearings Involving Unethical Conduct; When Required

(1) When Required (1) When Required . A hearing shall be held only if the pleadings raise genuine disputes of material fact, if the respondent's answer requests an opportunity to be heard in mitigation, or if the presenter requests to be heard in aggravation. In all other cases the pleadings, together with a statement of procedural history, shall be filed by the trier of fact directly with the Board for its consideration in determining the appropriate sanction to be imposed.

(2) Notice and Conduct of Hearings

(A) Generally At least 25 days prior to the initial scheduled hearing date, a written notice of hearing shall be served on the presenter, the respondent, and any counsel of record, stating the date, time and place of hearing. Subsequent days of hearing may be scheduled orally or in writing. Prior to the hearing the respondent will be advised of the right to be represented by counsel, to cross-examine witnesses and to present evidence. Arrangements for the hearing, including location of hearing, recording, interpreters and transcripts, shall be made by the Ethics Committee or special ethics master, if one has been appointed. A complete stenographic record of the hearing shall be made by an official court reporter or by a court reporter designated by the Director. Each trier of fact shall be obligated to inform every court reporter, witness and party of any protective order that has been issued and the effect thereof. All witnesses shall be duly sworn. If special circumstances dictate, the trier of fact may accept testimony of a witness by telephone and/or video conference.

(B) Standard of Proof Formal charges of unethical conduct, medical defenses, and reinstatement proceedings shall be established by clear and convincing evidence.

(C) Burden of Proof; Burden of Going Forward The burden of proof in proceedings seeking discipline or demonstrating aggravating factors relevant to unethical conduct charges is on the presenter. The burden of going forward regarding defenses or demonstrating mitigating factors relevant to charges of unethical conduct shall be on the respondent. The burden of proof in proceedings seeking reinstatement shall be on the petitioner.

(D) Respondent's Presence and Testimony; Presence and Sequestration of Witnesses Respondent's appearance at all hearings is mandatory. In accordance with R. 1:20-7(l), however, a respondent's absence shall not delay the orderly processing of the case. The grievant, if any, the grievant's attorney, if any, and respondent's attorney, if any, and administrative staff assisting in the prosecution of the matter shall have the right to be present at all times during the hearing. Any other witnesses may be sequestered during their testimony on reasonable terms on timely application and a showing of good cause.

(E) Findings and Report The trier of fact shall submit to the Board written findings of fact and conclusions of law on each issue presented, together with the record of the hearing, and shall take one of the following actions:

(i) Dismissal If the trier of fact finds that there has been no unethical conduct, the secretary or special ethics master shall send to the presenter, the respondent, the grievant, if any, the Director and the vice chair, a letter of dismissal in a form approved by the Director, together with a copy of the hearing panel's report. The original report and record shall be filed with the Director. The hearing panel or special ethics master shall not order any transcript without the prior approval of the Director or the Board. Appeals may be taken in accordance with R. 1:20-15(e)(2).

(ii) Admonition Recommendation If the hearing panel or special ethics master finds that there has been unethical conduct for which an admonition constitutes adequate discipline, the panel chair or special ethics master shall submit the original hearing panel report stating the specific discipline recommended and the record of all proceedings before it to the Director for transmittal to the Board. The hearing panel or special ethics master shall not order any transcript without the prior approval of either the Director or the Board. A copy of the hearing panel's report shall be served on the presenter, the respondent, the grievant, if any, the vice chair and secretary. The Board shall proceed pursuant to R. 1:20-15(f).

(iii) Reprimand, Censure, Suspension or Disbarment Recommendations If the hearing panel or special ethics master finds that there has been unethical conduct that requires the imposition of a reprimand, censure, suspension or disbarment, the panel chair or special ethics master shall submit the original hearing panel report stating the specific nature of the discipline recommended and the record of all proceedings, including the original transcript, to the Director for transmittal to the Board. A copy of the hearing panel's report shall be served on the presenter, the respondent, the grievant, if any, the vice chair and secretary. The Board shall proceed pursuant to R. 1:20-15(f).

(F) Public Hearings Unless a protective order has been issued in accordance with R. 1:20-9(h), all hearings shall be open to the public in accordance with R. 1:20-9(c).

(d) Abstention and Request For Disqualification A trier of fact shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to abstain under R. 1:12-1. It shall not be cause for disqualification that the trier of fact has heard or decided other cases involving the same respondent. Requests to disqualify a trier of fact shall, where possible, be made in advance of any prehearing conference; otherwise, it shall be made in advance of the initial day of hearing. The request shall be decided initially by the trier of fact, whose decision may be superseded by the vice chair or, in the event of a conflict, the chair, or, in matters handled by the Office of Attorney Ethics, by the Director.

(e) Withdrawal By Respondent's Counsel; When Permitted After the date of the pretrial conference or fixing of the first trial date, respondent's counsel may withdraw without leave of the trier of fact only upon the filing of the respondent's written consent, a substitution of attorney executed by both the withdrawing respondent's attorney and the substituted respondent's attorney, a written waiver by all other parties of notice and the right to be heard, and a certification by both the withdrawing respondent's attorney and the substituted respondent's attorney (or respondent pro se) that the withdrawal and substitution will not cause or result in delay.