§ 102.177 Exclusion from hearings; refusal of witness to answer questions; misconduct by attorneys and party representatives before the Agency; procedures for processing misconduct allegations.

(a) Any attorney or other representative appearing or practicing before the Agency must conform to the standards of ethical and professional conduct required of practitioners before the courts, and the Agency will be guided by those standards in interpreting and applying the provisions of this section.

(b) Misconduct by any person at any hearing before an Administrative Law Judge, Hearing Officer, or the Board may be grounds for summary exclusion from the hearing. Notwithstanding the procedures set forth in paragraph (e) of this section for handling allegations of misconduct, the Administrative Law Judge, Hearing Officer, or Board has the authority in the proceeding in which the misconduct occurred to admonish or reprimand, after due notice, any person who engages in misconduct at a hearing.

(c) The refusal of a witness at any such hearing to answer any question which has been ruled to be proper may, in the discretion of the Administrative Law Judge or Hearing Officer, be grounds for striking all testimony previously given by such witness on related matters.

(d) Misconduct by an attorney or other representative at any stage of any Agency proceeding, including but not limited to misconduct at a hearing, may be grounds for discipline. Such misconduct of an aggravated character may be grounds for suspension and/or disbarment from practice before the Agency and/or other sanctions.

(e) All allegations of misconduct pursuant to paragraph (d) of this section, except for those involving the conduct of Agency employees, will be handled in accordance with the following procedures:

(1) Allegations that an attorney or party representative has engaged in misconduct may be brought to the attention of the Investigating Officer by any person. The Investigating Officer, for purposes of this paragraph (e)(1), is the head of the Division of Operations-Management, or designee.

(2) The Investigating Officer or designee will conduct such investigation as is deemed appropriate and will have the usual powers of investigation provided in Section 11 of the Act. Following the investigation, the Investigating Officer will make a recommendation to the General Counsel, who will make the determination whether to institute disciplinary proceedings against the attorney or party representative. The General Counsel's authority to make this determination is not delegable to the Regional Director or other personnel in the Regional Office. If the General Counsel determines not to institute disciplinary proceedings, all interested persons will be notified of the determination, which is final.

(3) If the General Counsel decides to institute disciplinary proceedings against the attorney or party representative, the General Counsel or designee will serve the respondent with a complaint which will include: A statement of the acts which are claimed to constitute misconduct including the approximate date and place of such acts together with a statement of the discipline recommended; notification of the right to a hearing before an Administrative Law Judge with respect to any material issues of fact or mitigation; and an explanation of the method by which a hearing may be requested. The complaint will not be issued until the respondent has been notified of the allegations in writing and has been afforded a reasonable opportunity to respond.

(4) Within 14 days of service of the disciplinary complaint, the Respondent must file an answer admitting or denying the allegations, and may request a hearing. If no answer is filed or no material issue of fact or relevant to mitigation warranting a hearing is raised, the matter may be submitted directly to the Board. If no answer is filed, then the allegations will be deemed admitted.

(5) Sections 102.24 through 102.51, rules applicable to unfair labor practice proceedings, apply to disciplinary proceedings under this section to the extent that they are not contrary to the provisions of this section.

(6) The hearing will be conducted at a reasonable time, date, and place. In setting the hearing date, the Administrative Law Judge will give due regard to the Respondent's need for time to prepare an adequate defense and the need of the Agency and the Respondent for an expeditious resolution of the allegations.

(7) The hearing will be public unless otherwise ordered by the Board or the Administrative Law Judge.

(8) Any person bringing allegations of misconduct or filing a petition for disciplinary proceedings against an attorney or party representative will be given notice of the scheduled hearing. Any such person will not be a party to the disciplinary proceeding, however, and will not be afforded the rights of a party to call, examine or cross-examine witnesses and introduce evidence at the hearing, to file exceptions to the Administrative Law Judge's decision, or to appeal the Board's decision.

(9) The Respondent will, upon request, be provided with an opportunity to read the transcript or listen to a recording of the hearing.

(10) The General Counsel must establish the alleged misconduct by a preponderance of the evidence.

(11) At any stage of the proceeding prior to hearing, the Respondent may submit a settlement proposal to the General Counsel, who may approve the settlement or elect to continue with the proceedings. Any formal settlement reached between the General Counsel and the Respondent, providing for entry of a Board order reprimanding, suspending, disbarring or taking other disciplinary action against the Respondent, is subject to final approval by the Board. In the event any settlement, formal or informal, is reached after opening of the hearing, such settlement must be submitted to the Administrative Law Judge for approval. In the event the Administrative Law Judge rejects the settlement, either the General Counsel or the Respondent may appeal such ruling to the Board as provided in § 102.26.

(12) If it is found that the Respondent has engaged in misconduct in violation of paragraph (d) of this section, the Board may issue a final order imposing such disciplinary sanctions as it deems appropriate, including, where the misconduct is of an aggravated character, suspension and/or disbarment from practice before the Agency, and/or other sanctions.

(f) Any person found to have engaged in misconduct warranting disciplinary sanctions under paragraph (d) of this section may seek judicial review of the administrative determination.

[82 FR 11785, Feb. 24, 2017]