9 Rule 19 Subpoena power; discovery; testimony

A. Subpoena Power.

(1) Investigatory subpoenas. In order to assist disciplinary counsel’s investigation, a hearing panel chair assigned by the Board chair is authorized to issue investigatory subpoenas, upon disciplinary counsel’s request, requiring persons and organizations to produce evidence or testimony, under oath, at a place and time specified by the hearing panel chair. In the request, disciplinary counsel must demonstrate, and the hearing panel chair must find: (a) a factual basis, beyond mere conjecture or supposition, that a violation of ethical standards has occurred; (b) the relevance of the information sought to the investigation, and (c) that the demand is not too indefinite or overbroad. Any district or superior judge in the county in which enforcement is sought may issue orders compelling enforcement of the subpoena. Failure to abide by an order enforcing the subpoena will be grounds for contempt of the court.

(2) Subpoenas for Deposition or Hearing. After a petition, or a motion for reinstatement, is filed, disciplinary counsel or respondent may compel by subpoena the attendance of witnesses and the production of pertinent books, paper, and documents at a deposition or hearing under these rules.

(3) Enforcement of subpoenas. The hearing panel chair assigned by the Board, or a designee thereof, may issue a subpoena with the same effect as if issued by a court. Any district or superior judge in the county in which the attendance or production is required may, upon proper application, enforce the attendance and testimony of any witness and the production of any documents subpoenaed. Tender of a witness fee and mileage reimbursement is not necessary at the time of service in order to effect proper service of any subpoena issued at the request of the Board or disciplinary counsel.

(4) Quashing Subpoena. Any attack upon the validity of a subpoena shall be heard and determined by the chair of the hearing panel or by the court wherein enforcement of the subpoena is being sought.

(5) Witnesses and Fees. Subpoena and witness fees and mileage shall be the same as those provided for proceedings in superior court.

(6) Reciprocal Enforcement of Subpoenas. Whenever a subpoena is sought in this state pursuant to the laws of another jurisdiction for use in lawyer discipline or disability proceedings, a hearing panel chair assigned by the Board may issue a subpoena as provided in this section to compel the attendance of witnesses and production of documents.

B. Discovery.

(1) Scope. Within 20 days following the filing of an answer, disciplinary counsel and respondent shall exchange the names and addresses of all persons having knowledge of relevant facts and/or of witnesses. This list shall be updated without request. Within 60 days following the filing of an answer, disciplinary counsel and respondent may take depositions and shall comply with reasonable requests for production of (a) nonprivileged documents and evidence relevant to the charges or to respondent and (b) other material upon good cause shown to the chair of the hearing panel.

(2) Resolution of Disputes. Disputes concerning discovery shall be determined by the chair of the hearing panel before which the matter is pending.

(3) Other Rules Not Applicable. Discovery proceedings under these rules are not subject to the Vermont Rules of Civil Procedure regarding discovery except those relating to depositions and subpoenas.

C. Testimony. Testimony before the hearing panel shall be under oath.