N.Y. Comp. Codes R. & Regs. tit. 22 § 603.8-a

Current through Register Vol. 46, No. 45, November 2, 2024

Section 603.8-a - Referee proceedings

(a) Appointment of referee.

(1) At any time following the filing of statements pursuant to section 1240.8(a)(2) of this Title, the court may, upon motion of either party or upon its own motion, refer issues of disputed facts to a referee pursuant to section 1240.8(b)(1) of this Title.

(2) A referee shall have the powers and duties set forth in this section, including without limitation, the power and duty to conduct hearings into formal charges of misconduct, and to make such findings of fact and conclusions of law and to recommend such disciplinary sanctions as the referee may deem appropriate, in accordance with Part 1240 of this Title.

(b) Objections to referee. Within seven days of the appointment of a referee by the court the office of the chief attorney or the respondent may object to the referee appointed. The objection shall be made to the court in writing on notice to the referee and the adversary.

(c) Timing of hearing. The hearing before the referee shall be completed within 60 days following the date of the entry of the order of reference in accordance with section 1240.8(b)(1) of this Title.

(d) Appearances. The referee shall cause to be entered upon the record all appearances, with a notation in whose behalf each appearance is made.

(e) Order of procedure. In a referee proceeding upon charges, the office of chief attorney shall have the burden of proof, shall initiate the presentation of evidence, and may present rebuttal evidence. Opening statements, when permitted in the discretion of the referee, shall be made first by staff attorney. Closing statements shall be made first by the respondent.

(f) Presentation by the parties. Respondent and staff attorney shall have the right of presentation of evidence, cross-examination, objection, motion and argument. The referee may examine all witnesses.

(g) Limiting number of witnesses. The referee may limit the number of witnesses who may be heard upon any issue before him or her to eliminate unduly repetitious or cumulative evidence.

(h) Additional evidence. At the hearing the referee may authorize any party to file specific documentary evidence as a part of the record.

(i) Oral examination. Witnesses shall be examined orally unless the testimony is taken by deposition as provided in section 1240.8(a)(4) of this Title or the facts are stipulated to by the parties. Witnesses whose testimony is to be taken shall be sworn, or shall affirm, before any questions are put to them or their testimony is deemed evidence in the proceeding.

(j) Fees of witnesses. Any witnesses subpoenaed shall be paid, by the subpoenaing party, the same fees and mileage as are paid for like services in the Supreme Court in the First Department.

(k) Presentation and effect of stipulation. 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 such parties with respect to the matters therein stipulated.

(l) Admissibility of evidence.

(1) General rule. All evidence which the referee deems relevant, competent and not privileged shall be admissible.

(2) Pleadings. The notice of petition and answer thereto shall, without further action, be considered as parts of the record.

(3) Convictions. A certificate of the conviction of a respondent for any crime shall be conclusive evidence of the respondent's guilt of that crime in any disciplinary proceeding instituted against the respondent and based on the conviction, and the respondent may not offer evidence inconsistent with the essential elements of the crime for which the respondent was convicted as determined by the statute defining the crime except such evidence as was not available either at the time of the conviction or in any proceeding challenging the conviction.

(m) Reception and ruling on evidence. When objections to the admission or exclusion of evidence are made, the grounds relied upon shall be stated. Formal exceptions are unnecessary. The referee shall rule on the admissibility of all evidence.

(n) Copies of exhibits. When exhibits of a documentary character are received in evidence, copies shall, unless impracticable, be furnished to the parties and to the referee.

(o) Recording of proceeding. Hearings shall be recorded, and the transcript of the hearing so recorded, if such transcription is made, shall be a part of the record and sole official transcript of proceeding. Such transcript shall consist of a verbatim report of the hearing, an exhibit list and the reporter's certificate, and nothing shall be omitted from the record except as the referee may direct. 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 subdivision (h) of this section or changes in the transcript, except as provided in subdivision (p) of this section.

(p) Transcript corrections. Corrections in the official transcript may be made only to make it conform to what actually transpired 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 may be incorporated into the record, if the referee approves, at any time during the hearing or after the close of the hearing, but in no event more than 10 days after the receipt of the transcript. Any dispute among the parties as to correction of the official transcript shall be resolved by the referee, whose decision shall be final.

(q) Copies of transcripts. A respondent desiring copies of an official transcript may obtain such copies at the respondent's own expense from the official reporter.

(r) Amendment and supplementation of pleadings.

(1) No amendment or supplementation of any pleadings shall be made unless by consent of the parties or by leave of the court or the referee.

(2) Whenever, in the course of any hearing under these rules, evidence shall be presented upon which another charge or charges against the respondent might be made, the referee may, after reasonable notice to the respondent and an opportunity to answer and be heard, proceed to the consideration of such additional charge or charges as if they had been made and served at the time of service of the notice of petition and petition, and may render a decision upon all charges as may be justified by the evidence in the case.

(s) Reopening of record on application of respondent.

(1) Application to reopen. No application to reopen a proceeding shall be granted except upon the application of staff attorney or the respondent made prior to the filing by the referee of the report and recommendation, and only upon good cause shown. Such application shall set forth clearly the facts claimed to constitute grounds requiring reopening of the proceedings, and shall be filed with the office of chief attorney. A copy of such application shall be served by the movant upon all other parties.

(2) Responses. Within five days following the receipt of such application, any other party may file with the office of chief attorney an answer thereto, and in default thereof shall be deemed to have waived any objection to the granting of such application.

(3) Action on application. As soon as practicable after the filing of an answer to such application or default thereof, as the case may be, the office of chief attorney shall transmit such documents to the referee who shall grant or deny such application.

(t) Referee's report and recommendation.

(1) At the conclusion of the testimony and following the presentation of oral arguments, the referee shall determine whether an inquiry as to sanction is required and shall, before the commencement of the inquiry, set forth on the record or in writing, the charges that are to be sustained. The inquiry may commence immediately upon the conclusion of the oral arguments, but in no event later than seven days from the conclusion of the oral arguments. The referee may receive evidence regarding any defense or mitigating factor raised by the respondent, and any aggravating factor raised by the committee.

(2) Following the hearing and the parties' submissions of proposed findings of fact, the referee, in all cases, shall prepare a written report as to whether the committee has established each element of the charge or charges of misconduct, setting forth findings of fact and conclusions of law. Where the referee's determination is to sustain one or more charges against the respondent, the referee shall make a recommendation as to an appropriate sanction.

(3) The referee shall file a report within 60 days of the conclusion of the hearing with the court and the office of chief attorney, which shall serve copies thereof upon the respondent.

(4) Upon submission of the referee's report to the court, either party may move to confirm or disaffirm the report, in whole or in part, by motion on notice to the adversary pursuant to section 603.8(c)(1) of this Part. Any motion by the committee regarding the referee's report shall be made within 30 days of receipt of a copy thereof.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 603.8-a