Conduct of Registered Representatives and Attorneys Appearing before OATH’s Hearings Division
Rule status: Adopted
Agency: OATH-ECB
Effective date: September 11, 2022
Proposed Rule Full Text
OATH-Proposed-Rule-re-Registered-Representatives-Appearing-before-OATH-with-Certs-3.28.22.pdf
Adopted Rule Full Text
8.4.22-OATH-Final-Rule-re-Conduct-at-OATH-Hearings-2022-RG-026-Legal-12815849_1.pdf
Adopted rule summary:
The Office of Administrative Trials and Hearings (OATH) has adopted amendments clarifying the Rules of Practice for its Hearings Division. Among other new requirements, these amendments require registered representatives to have proper authorization when representing respondents and to be familiar with the relevant facts and applicable law underlying a summons. These amendments also clarify and enumerate the types of misconduct and patterns of misconduct, particularly those involving dishonesty and integrity, such as registered representatives’ misrepresenting themselves as attorneys, providing false information, and soliciting on OATH’s premises.
Online comments: 2
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Matthew Shapiro
Comment added May 11, 2022 1:59pmI am writing in regards to the proposed rule defining “misconduct” as:
(16) Failing to appear at a hearing or abandoning representation without providing at least seven
(7) days’ notice to the Respondent and the Tribunal; andCurrently, OATH rules provide for vacating default judgment after failing to appear at a scheduled hearing. It does not make sense to both classify failing to appear as misconduct as well as providing specific rules to allow default judgments to be opened after failing to appear.
Additionally, summonses are usually scheduled by OATH without the respondent (or attorney) being able too select a specific date. If a summons is rescheduled by an attorney and the attorney is then unavailable on that date, the attorney may have no choice but to “fail to appear” in order to file a request to reopen a default judgment after the hearing date has passed.
Requiring an attorney to provide 7 days notice if they cannot appear on a scheduled date, and classifying this as attorney misconduct, is a significant hardship and an inflexible policy. This is especially the case since now remote hearings require attorneys to submit a list of cases to be heard at least three days prior to the hearing date.
The proposed rule should eliminate this clause from the attorney misconduct definition.
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Andrew Mundo
Comment added May 12, 2022 11:59amMy concern is the same as voiced by Matthew Shapiro – the proposed rule defining “misconduct” as:
(16) Failing to appear at a hearing or abandoning representation without providing at least seven
(7) days’ notice to the Respondent and the Tribunal; andCurrently, OATH rules provide for vacating default judgment after failing to appear at a scheduled hearing. It does not make sense to both classify failing to appear as misconduct as well as providing specific rules to allow default judgments to be opened after failing to appear.
Additionally, summonses are usually scheduled by OATH without the respondent (or attorney) being able to select a specific date. If a summons is rescheduled by an attorney and the attorney is then unavailable on that date, the attorney may have no choice but to “fail to appear” in order to file a request to reopen a default judgment after the hearing date has passed.
Requiring an attorney to provide 7 days notice if they cannot appear on a scheduled date, and classifying this as attorney misconduct, is a significant hardship and an inflexible policy. This is especially the case since now remote hearings require attorneys to submit a list of cases to be heard at least three days prior to the hearing date.
The proposed rule should eliminate this clause from the attorney misconduct definition.