Rule 9.115. Hearing Panel Procedure

(A) Rules Applicable. Except as otherwise provided in these rules, the rules governing

practice and procedure in a nonjury civil action apply to a proceeding before a hearing

panel. Pleadings must conform as nearly as practicable to the requirements of subchapter

2.100. The original of the formal complaint and all other pleadings must be filed with the

board. The formal complaint must be served on the respondent. All other pleadings must

be served on the opposing party and each member of the hearing panel. Proof of service

of the formal complaint may be filed at any time prior to the date of the hearing. Proof of

service of all other pleadings must be filed with the original pleadings.

(B) Complaint. Except as provided by MCR 9.120, a complaint setting forth the facts of the

alleged misconduct begins proceedings before a hearing panel. The administrator shall

prepare the complaint, file it with the board, and serve it on the respondent and a

respondent’s employer. The unwillingness of a complainant to proceed, or a settlement

between the complainant and the respondent, does not itself affect the right of the

administrator to proceed.

(C) Service. Service of the complaint and a default must be made by personal service or by

registered or certified mail addressed to the person at the person’s last known address.

An attorney’s last known address is the address on file with the state bar as required by

Rule 2 of the Supreme Court Rules Concerning the State Bar of Michigan. A

respondent’s attorney of record must also be served, but service may be made under

MCR 2.107. Service is effective at the time of mailing, and nondelivery does not affect

the validity of the service.

(D) Answer.

(1) A respondent must serve and file a signed answer or take other action permitted by

law or these rules within 21 days after being served with the complaint in the

manner provided in MCR 9.115(C). A signature constitutes verification that the

respondent has read the answer or other response.

tive at the time of mailing, and nondelivery does not affect

the validity of the service.

(D) Answer.

(1) A respondent must serve and file a signed answer or take other action permitted by

law or these rules within 21 days after being served with the complaint in the

manner provided in MCR 9.115(C). A signature constitutes verification that the

respondent has read the answer or other response.

(2) A default, with the same effect as a default in a civil action, may enter against a

respondent who fails within the time permitted to file an answer admitting, denying,

or explaining the complaint, or asserting the grounds for failing to do so.

(E) Representation by Attorney. The respondent may be represented by an attorney, who

must enter an appearance, which has the same effect as an appearance under MCR 2.117.

(F) Prehearing Procedure.

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(1) Extensions. If good cause is shown, the hearing panel chairperson may grant one

extension of time per party for filing pleadings and may grant one adjournment per

party. Additional requests may be granted by the board chairperson if good cause is

shown. Pending criminal or civil litigation of substantial similarity to the allegations

of the complaint is not necessarily grounds for an adjournment.

(2) Motion to Disqualify.

(a) Within 14 days after an answer has been filed or the time for filing the answer

has expired, each member of the hearing panel shall disclose in a writing filed

with the board any information that the member believes could be grounds for

disqualification under the guidelines of MCR 2.003(C), including pending

requests for investigation filed against the member. The duty to disclose shall

be a continuing one. The board shall serve a copy of the disclosure on each

party and each panel member.

ember of the hearing panel shall disclose in a writing filed

with the board any information that the member believes could be grounds for

disqualification under the guidelines of MCR 2.003(C), including pending

requests for investigation filed against the member. The duty to disclose shall

be a continuing one. The board shall serve a copy of the disclosure on each

party and each panel member.

(b) A motion to disqualify must be filed within 14 days after the moving party

discovers the ground for disqualification. If the discovery is made within 14

days of the hearing date, the motion must be made forthwith. If a motion is not

timely filed, untimeliness is a factor in deciding whether the motion should be

granted. All known grounds for disqualification must be included at the time

the motion is filed. An affidavit must accompany the motion. The board

chairperson shall decide the motion under the guidelines of MCR 2.003.

(c) The board must assign a substitute for a disqualified member of a hearing panel.

If all are disqualified, the board must reassign the complaint to another panel.

(3) Amendment of Pleadings. The administrator and the respondent each may amend a

pleading once as a matter of course within 14 days after being served with a

responsive pleading by the opposing party, or within 15 days after serving the

pleading if it does not require a responsive pleading. Otherwise, a party may amend

a pleading only by leave granted by the hearing panel chairperson or with the

written consent of the adverse party.

(4) Discovery. Pretrial or discovery proceedings are not permitted, except as follows:

days after being served with a

responsive pleading by the opposing party, or within 15 days after serving the

pleading if it does not require a responsive pleading. Otherwise, a party may amend

a pleading only by leave granted by the hearing panel chairperson or with the

written consent of the adverse party.

(4) Discovery. Pretrial or discovery proceedings are not permitted, except as follows:

(a) Within 21 days after the service of a formal complaint, a party may demand in

writing that documentary evidence that is to be introduced at the hearing by the

opposing party be made available for inspection or copying. Within 14 days

after service of a written demand, the documents shall be made available,

provided that the administrator need not comply prior to the filing of the

respondent’s answer; in such case, the administrator shall comply with the

written demand within 14 days after the filing of the respondent’s answer. The

respondent shall comply with the written demand within 14 days, except that

the respondent need not comply until the time for filing an answer to the formal

complaint has expired. Any other documentary evidence to be introduced at the

hearing by either party shall be supplied to the other party no later than 14 days

prior to the hearing. Any documentary evidence not so supplied shall be

excluded from the hearing except for good cause shown.

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g an answer to the formal

complaint has expired. Any other documentary evidence to be introduced at the

hearing by either party shall be supplied to the other party no later than 14 days

prior to the hearing. Any documentary evidence not so supplied shall be

excluded from the hearing except for good cause shown.

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(i)

Within 21 days after the service of a formal complaint, a party may demand

in writing that the opposing party supply written notification of the name

and address of any person to be called as a witness at the hearing. Within

14 days after the service of a written demand, the notification shall be

supplied. However, the administrator need not comply prior to the filing of

the respondent’s answer to the formal complaint; in such cases, the

administrator shall comply with the written demand within 14 days of the

filing of the respondent’s answer to the formal complaint. The respondent

shall comply with the written demand within 14 days, except that the

respondent need not comply until the time for filing an answer to the

formal complaint has expired. Except for good cause shown, a party who is

required to give said notification must give supplemental notice to the

adverse party within 7 days after any additional witness has been

identified, and must give the supplemental notice immediately if the

additional witness is identified less than 14 days before a scheduled

hearing.

(ii) Within 21 days following the filing of an answer, the administrator and

respondent shall exchange the names and addresses of all persons having

knowledge of relevant facts and comply with reasonable requests for (1)

non-privileged information and evidence relevant to the charges against the

respondent, and (2) other material upon good cause shown to the chair of

the hearing panel.

aring.

(ii) Within 21 days following the filing of an answer, the administrator and

respondent shall exchange the names and addresses of all persons having

knowledge of relevant facts and comply with reasonable requests for (1)

non-privileged information and evidence relevant to the charges against the

respondent, and (2) other material upon good cause shown to the chair of

the hearing panel.

(b) A deposition may be taken of a witness who lives outside the state or is

physically unable to attend the hearing. For good cause shown, the hearing

panel may allow the parties to depose other witnesses.

(c) The hearing panel may order a prehearing conference held before a panel

member to obtain admissions or otherwise narrow the issues presented by the

pleadings.

If a party fails to comply with subrule (F)(4)(a), the hearing panel or the board may,

on motion and showing of material prejudice as a result of the failure, impose one or

more of the sanctions set forth in MCR 2.313(B)(2)(a)-(c).

(5) Discipline by Consent.

(a) In exchange for a stated form of discipline and on the condition that the plea or

admission is accepted by the commission and the hearing panel, a respondent

may offer to

(i)

plead no contest to or admit all or some of the facts and misconduct alleged

in the complaint or otherwise agreed to by the parties or

(ii) stipulate to facts and misconduct in a proceeding filed under subchapter

9.100 not initiated by a formal complaint.

The respondent’s offer shall first be submitted to the commission. If an

agreement is reached with the commission, the administrator and the

respondent shall file with the board and the hearing panel a stipulation for a

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consent order of discipline. At the time of the filing, the administrator shall

serve a copy of the stipulation upon the complainant.

(b) The stipulation shall include:

greement is reached with the commission, the administrator and the

respondent shall file with the board and the hearing panel a stipulation for a

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consent order of discipline. At the time of the filing, the administrator shall

serve a copy of the stipulation upon the complainant.

(b) The stipulation shall include:

(i)

admissions, which may be contained in an answer to the complaint, or a

plea of no contest to facts sufficient to enable the hearing panel to

determine the nature of the misconduct and conclude that the discipline

proposed is appropriate in light of the identified misconduct;

(ii) citation to the applicable American Bar Association Standards for

Imposing Lawyer Sanctions; and

(iii) disclosure of prior discipline.

Admonishments and contractual probations shall be filed separately and kept

confidential until the hearing panel accepts the stipulation under this rule.

(c) Upon filing of a stipulation for a consent order of discipline, the hearing panel

may:

(i)

approve the stipulation and file a report and enter a final order of

discipline; or

(ii) communicate with the administrator and the respondent about any

concerns it may have regarding the stipulation. Before rejecting a

stipulation, a hearing panel shall advise the parties that it is considering

rejecting a stipulation and the basis for the rejection. The hearing panel

shall provide an opportunity, at a status conference or comparable

proceeding, for the parties to offer additional information in support of the

stipulation.

(d) If a hearing panel rejects a stipulation, the hearing panel shall advise the parties

in writing of its reason or reasons for rejecting the stipulation and allow the

parties an opportunity to submit an amended stipulation.

aring panel

shall provide an opportunity, at a status conference or comparable

proceeding, for the parties to offer additional information in support of the

stipulation.

(d) If a hearing panel rejects a stipulation, the hearing panel shall advise the parties

in writing of its reason or reasons for rejecting the stipulation and allow the

parties an opportunity to submit an amended stipulation.

(e) If a hearing panel rejects an amended stipulation, or if no amended stipulation is

filed within 21 days after rejection of the initial stipulation, the matter shall be

reassigned to a different hearing panel. Upon reassignment to a different

hearing panel,

(i)

the stipulation and any amended stipulation shall be deemed withdrawn,

(ii) statements and stipulations made in connection with the stipulation and any

amended stipulation shall be inadmissible in disciplinary proceedings

against the respondent and not binding on either party, and

(iii) the newly assigned hearing panel shall conduct a hearing.

(G) Hearing Time and Place; Notice. The board or the chairperson of the hearing panel shall

set the time and place for a hearing. Notice of a hearing must be served by the board or

the chairperson of the hearing panel on the administrator, the respondent, the

complainant, and any attorney of record at least 21 days before the initial hearing. Unless

the board or the chairperson of the hearing panel otherwise directs, the hearing must be

or the chairperson of the hearing panel shall

set the time and place for a hearing. Notice of a hearing must be served by the board or

the chairperson of the hearing panel on the administrator, the respondent, the

complainant, and any attorney of record at least 21 days before the initial hearing. Unless

the board or the chairperson of the hearing panel otherwise directs, the hearing must be

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in the county in which the respondent has or last had an office or residence. If the hearing

panel fails to convene or complete its hearing within a reasonable time, the board may

reassign the complaint to another panel or to a neutral. A party may file a motion for a

change of venue. The motion must be filed with the board and shall be decided by the

board chairperson, in part, on the basis of the guidelines in MCR 2.221. Notwithstanding

MRE 615, there shall be a presumption that a complainant is entitled to be present during

a hearing, which may only be overcome upon a finding by the panel, supported by facts

that are particular to the proceeding, that testimony by the complainant is likely to be

materially affected by exposure to other testimony at the hearing.

(H) Respondent’s Appearance. The respondent shall personally appear at the hearing, unless

excused by the panel, and is subject to cross-examination as an opposite party under

MCL 600.2161.

(1) Where satisfactory proofs are entered into the record that a respondent possessed

actual notice of the proceedings, but who still failed to appear, a panel shall suspend

him or her effective 7 days from the date of entry of the order and until further order

of the panel or the board.

unless

excused by the panel, and is subject to cross-examination as an opposite party under

MCL 600.2161.

(1) Where satisfactory proofs are entered into the record that a respondent possessed

actual notice of the proceedings, but who still failed to appear, a panel shall suspend

him or her effective 7 days from the date of entry of the order and until further order

of the panel or the board.

(2) If the respondent, or the respondent’s attorney on his or her behalf, claims physical

or mental incapacity as a reason for the respondent’s failure to appear before a

hearing panel or the board, the panel or the board on its own initiative may, effective

immediately, suspend the respondent from the practice of law until further order of

the panel or board. The order of suspension must be filed and served as other orders

of discipline.

(I)

Hearing; Contempt.

(1) A hearing panel may issue subpoenas (including subpoenas for production of

documents and other tangible things), cause testimony to be taken under oath, and

rule on the admissibility of evidence under the Michigan Rules of Evidence. The

oath or affirmation may be administered by a panel member. A subpoena must be

issued in the name and under the seal of the board. It must be signed by a panel or

board member, by the administrator, or by the respondent or the respondent’s

attorney. A subpoenaed witness must be paid the same fee and mileage as a witness

subpoenaed to testify in the circuit court. Parties must notify their own witnesses of

the date, time, and place of the hearing.

(2) A person who without just cause fails or refuses to appear and give evidence as

commanded by a subpoena, to be sworn or affirmed, or to answer a proper question

after he or she has been ordered to do so, is in contempt. The administrator may

initiate a contempt proceeding under MCR 3.606 in the circuit court for the county

where the act or refusal to act occurred.

and place of the hearing.

(2) A person who without just cause fails or refuses to appear and give evidence as

commanded by a subpoena, to be sworn or affirmed, or to answer a proper question

after he or she has been ordered to do so, is in contempt. The administrator may

initiate a contempt proceeding under MCR 3.606 in the circuit court for the county

where the act or refusal to act occurred.

(3) Upon a showing of good cause by a party, a panel may permit a witness to testify by

telephonic, voice, or video conferencing.

(4) Notwithstanding any other provision of this rule, a subpoena issued under this rule

may require a party or witness to appear by telephone or by videoconferencing

technology. Telephonic proceedings are subject to the provisions of MCR 2.402,

and videoconference proceedings are subject to the provisions of MCR 2.407.

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(J) Decision.

(1) The hearing panel must file a report on its decisions regarding the misconduct

charges and, if applicable, the resulting discipline. The report must include a

certified transcript, a summary of the evidence, pleadings, exhibits and briefs, and

findings of fact. The discipline section of the report must also include a summary of

all previous misconduct for which the respondent was disciplined, admonished, or

placed on contractual probation.

(2) Upon a finding of misconduct, the hearing panel shall conduct a separate sanction

hearing to determine the appropriate discipline. The sanction hearing shall be

conducted as soon after the finding of misconduct as is practicable and may be held

immediately following the panel’s ruling that misconduct has been established.

ent was disciplined, admonished, or

placed on contractual probation.

(2) Upon a finding of misconduct, the hearing panel shall conduct a separate sanction

hearing to determine the appropriate discipline. The sanction hearing shall be

conducted as soon after the finding of misconduct as is practicable and may be held

immediately following the panel’s ruling that misconduct has been established.

(3) If the hearing panel finds that the charge of misconduct is established by a

preponderance of the evidence, it must enter an order of discipline. The order shall

take effect 21 days after it is served on the respondent unless the panel finds good

cause for the order to take effect on a different date, in which event the panel’s

decision must explain the reasons for ordering a different effective date. The

discipline ordered may be concurrent or consecutive to other discipline. In

determining the discipline to be imposed, any and all relevant evidence of

aggravation or mitigation shall be admissible, including, but not limited to, records

of the board, previous admonitions and orders of discipline, and the previous

placement of the respondent on contractual probation.

(4) If the hearing panel finds that the charge of misconduct is not established by a

preponderance of the evidence, it must enter an order dismissing the complaint.

(5) The report and order must be signed by the panel chairperson and filed with the

board and the administrator. A copy must be served on the parties as required by

these rules.

(K) Stay of Discipline. If a discipline order is a suspension of 179 days or less, a stay of the

discipline order will automatically issue on the timely filing by the respondent of a

petition for review and a petition for a stay of the discipline. If the discipline ordered is

more severe than a suspension of 179 days, the respondent may petition the board for a

stay pending review of the discipline order. Once granted, a stay remains effective until

the further order of the board.

(L) Enforcement

ne order will automatically issue on the timely filing by the respondent of a

petition for review and a petition for a stay of the discipline. If the discipline ordered is

more severe than a suspension of 179 days, the respondent may petition the board for a

stay pending review of the discipline order. Once granted, a stay remains effective until

the further order of the board.

(L) Enforcement. The administrator shall take the necessary steps to enforce a discipline

order after it is effective.

(M) Resignation by Respondent; Admission of Charges. An attorney’s resignation may not

be accepted while a request for investigation or a complaint is pending, except pursuant

to an order of disbarment.