Conduct of Formal Adjudicatory Proceedings

(1) Procedure Generally. The conduct of formal adjudicatory proceedings shall be governed by 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure. Upon receipt of the respondent’s answer requesting a formal adjudicatory proceeding, the proceeding shall be conducted by a presiding officer appointed by the Board. The staff attorney member of the Complaint Review Team shall serve as the prosecuting attorney. The adjudicatory proceeding shall serve to finalize the Board’s investigation of the facts and grounds for discipline or other disposition as described in 309 CMR 7.02. At the conclusion of the proceeding, in accordance with the provisions of 801 CMR 1.00, the presiding officer shall file a recommended decision with the Board and promptly provide the parties with a copy. This recommended decision shall contain the presiding officer’s recommended findings of fact and rulings of law concerning the charges set forth in the order to show cause. It shall not be the role of the presiding officer to recommend the form of discipline or other disposition to be taken by the Board. Written Direct Testimony. Notwithstanding anything to the contrary in 801 CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure, all parties shall file within a reasonable time in advance of the hearing the full written text of the testimony of their witnesses on direct examination, including all exhibits to be offered in evidence. The presiding officer shall establish a schedule for the filing of this direct testimony and exhibits. A party may by motion seek permission for good cause shown to present the direct testimony of a witness by oral examination. Good cause in this context includes, but shall not be limited to, persuasive evidence that the witness is an adverse witness, hostile, or otherwise unwilling to prepare the witness’s direct testimony in writing. The presiding officer may exclude direct testimony offered at the hearing that was not included in the previously filed, written direct testimony but was reasonably obtainable at the time it was filed. The presiding officer may also require the filing of written rebuttal testimony within a reasonable time after the filing of the direct testimony. All witnesses whose testimony is filed in writing shall appear at the hearing, attest under the penalties of perjury to the accuracy of their written testimony, and be available for cross- examination. If a witness is not available for cross-examination at the hearing, the written testimony of the witness shall be excluded from the record unless the parties agree otherwise. Notwithstanding the foregoing, the requirement to file written direct testimony can be waived by stipulation of the parties.