Rule 1:20-5. Prehearing Procedures

(a) Discovery

(1) Generally Discovery shall be available to the presenter. Discovery shall also be available to the respondent, provided that a verified answer in compliance with R. 1:20-4(e) has been filed. All such requests shall be in writing.

(2) Scope On written request the following information, if relevant to the investigation, prosecution, or defense of a matter, and if within the possession, custody or control of the presenter, the respondent or counsel, is subject to discovery and shall be made available for inspection and copying as set forth in this rule:

(A) a writing as defined by N.J.R.E. 801(e) or any other tangible object, including those obtained from or belonging to the respondent;

(B) written statements, if any, including any memoranda reporting or summarizing oral statements, made by any witness, including the respondent;

(C) results or reports of mental or physical examinations and of scientific tests or experiments made in connection with the matter;

(D) names, addresses and telephone numbers of all persons known to have relevant knowledge or information about the matter, including a designation by the presenter and respondent as to which of those persons will be called as witnesses;

(E) police reports and any investigation reports;

(F) name and address of each person expected to be called as an expert witness, the expert's qualifications, the subject matter on which the expert will testify, a copy of all written reports submitted by the expert or, if none, a statement of the facts and opinions to which the expert will testify and a summary of the grounds for each opinion; and

(G) any final disciplinary investigative report.

(3) Documents Not Subject to Discovery . This rule does not require discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or that party's attorney or agents in connection with the investigation, prosecution or defense of the matter. Nor does it require discovery of statements, signed or unsigned, made by respondent to respondent's attorney or that attorney's agents. Any materials relating to any matter deemed "confidential" under R. 1:20-9, including dismissals and diversions, are not discoverable. This rule does not authorize discovery of any internal manuals or materials prepared by the Office of Attorney Ethics or the Disciplinary Review Board.

(4) Type of Discovery Not Permitted. Neither written interrogatories, nor requests for admissions, nor oral depositions shall be permitted in any matter, except that depositions to preserve the testimony of a witness likely to be unavailable for hearing due to death, incapacity or otherwise, may be taken in accordance with the procedure (modified as appropriate to disciplinary proceedings) set forth in R. 3:13-2.

(5) Timeliness of Discovery; Continuing Duty. Initial discovery shall be made available within 20 days after receipt of a written request therefor. A party's obligation to provide discovery is a continuing one. If, subsequent to compliance with a request for discovery, a party discovers additional names or statements of witnesses or other information reasonably encompassed by the initial request for discovery, the original discovery response shall be promptly supplemented accordingly.

(6) Failure to Make Discovery. Any discoverable information that is not timely furnished either by original or supplemental response to a discovery request may, on application of the aggrieved party, be excluded from evidence at hearing. The failure of the presenter or respondent to disclose the name and provide the report or summary of any expert who will be called to testify at least 20 days prior to the hearing date shall result in the exclusion of the witness, except on good cause shown.

(7) Discovery Applications. All discovery applications shall be made on notice to the hearing panel chair or special ethics master, if one has been appointed. An interlocutory appeal may be sought only pursuant to R. 1:20-16(f)(1).

(b) Prehearing Conference

(1) Attendance A prehearing conference may be held in standard unethical conduct cases in the discretion of the trier of fact if requested by the presenter, the respondent, or the trier of fact. A prehearing conference shall be held in all complex cases alleging unethical conduct at the request of the presenter, the respondent, or the trier of fact. The prehearing conference shall be held by the hearing panel chair, sitting alone or, if assigned, a special ethics master, within 45 days after the time within which an answer to a complaint is due. At least 14 days written notice of the date of the conference shall be given. Attendance at the conference is mandatory by all parties. A prehearing conference may be held by telephone call where appropriate. No transcript shall be made of the prehearing conference, except in unusual circumstances.

(2) Prehearing Report At least five business days before the date scheduled for the prehearing conference, both the presenter and the respondent shall file a report with the hearing panel chair or special ethics master, and with the adversary, disclosing the name, address and telephone numbers of each person expected to be called at hearing, including any person who will testify as to the character or reputation of the respondent, and all experts. With respect to an expert witness, the report shall state the person's name, address, qualifications, and the subject matter on which the expert is expected to testify. A copy of the expert's report, if any, or, if no written report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, shall be attached. Every respondent shall also include his or her own office and home address (including a street address) and telephone number where the attorney can be reached at all times. The respondent shall have a continuing duty to promptly advise the hearing panel chair, special ethics master, presenter, secretary of any district committee and the Director of any changes in any of the items required above.

(3) Objectives At the prehearing conference, the hearing panel chair or special ethics master shall address the following matters:

(A) the formulation and simplification of issues;

(B) admissions and stipulations of the parties with respect to allegations, defenses and any aggravation or mitigation;

(C) the factual and legal contentions of the parties;

(D) the identification and limitation of witnesses, including character and expert witnesses;

(E) deadlines for the completion of discovery, including the timely exchange of expert reports;

(F) the hearing date and its estimated length;

(G) issuance of any subpoenas necessary to presentation of the case;

(H) premarking of all exhibits into evidence to which the parties consent;

(I) the priority of disciplinary proceedings under R. 1:20-8 and any known trial commitments by the presenter, respondent, and respondent's counsel that could conflict with the scheduling of the matter. Counsel shall be under a continuing duty to promptly notify the hearing panel chair or the special ethics master of any such trial dates assigned as soon as known; and

(J) any other matters which may aid in the disposition of the case.

(4) Case Management Order Within seven days following the prehearing conference, the hearing panel chair or special ethics master shall issue a case management order, designated as such in the caption, memorializing any agreements by the parties and any determinations made respecting any matters considered at the conference. That order shall set forth the time period within which all discovery shall be completed. The case management order, which constitutes part of the record, shall be served on the presenter and the respondent and filed with the vice chair and the Director.

(5) Setting Hearing Date and Conclusion At the prehearing conference the hearing panel chair or special ethics master shall schedule dates for the hearing of the case within 60 days after the date of the conference, except in extraordinary circumstances, which hearing dates shall be promptly reported to the vice chair and Director. The hearing shall be concluded within 45 days after its commencement and a hearing report shall be filed with the Board and served on the parties within 60 days after the hearing's conclusion, except in extraordinary circumstances.

(c) Sanctions The hearing panel chair or special ethics master shall make and enforce all rules and orders necessary to compel compliance with this rule and may suppress an answer, bar defenses, or bar the admissibility of any evidence offered that is in substantial violation of the case management order, discovery obligations, or any other order.

(d) Motion to Dismiss No motion to dismiss a complaint shall be entertained except:

(1) a prehearing motion addressed either to the legal sufficiency of a complaint to state a cause of action as a matter of law or to jurisdiction;

(2) a motion to dismiss at the conclusion of the presenter's case in chief; and

(3) a motion by the presenter to dismiss the complaint, in whole or in part, when

(A) an essential witness becomes unavailable or

(B) as a result of newly discovered or newly disclosed evidence, one or more counts of the complaint cannot be proven by clear and convincing evidence. Such motion shall be supported by the presenter's certification of the facts supporting the motion and any relevant exhibits, and shall be decided by the trier of fact.