(a) Any witness in a formal investigative
proceeding may be accompanied and advised by an attorney personally
representing that witness.
(1) Such attorney must be a member in good
standing of the bar of any state, Commonwealth, possession, territory,
or the District of Columbia, who has not been suspended or debarred
from practice before the Board in accordance with any provision of
this part, including paragraph (a)(4) of this section.
(2) Such attorney may advise
the witness before, during, and after the taking of the witness’
testimony and may briefly question the witness, on the record, at
the conclusion of the witness’ testimony, for the sole purpose
of clarifying any of the answers the witness has given. During the
taking of the testimony of a witness, such attorney may make summary
notes solely for the attorney’s use in representing the witness.
Neither the attorney nor witness may retain copies of exhibits used
or introduced in the course of a witness’ testimony.
(3) All witnesses must be sequestered,
and, unless permitted in the discretion of the designated representative,
no witness or accompanying attorney may be present during the taking
of testimony of any other witness called in such formal investigative
proceeding. Attorneys for any other interested persons or entities
will not, unless permitted in the discretion of the designated representative,
have a right to be present during the testimony of any witness not
personally being represented by such attorneys.
(4) The Board, for good cause, may exclude
a particular attorney from further participation in any formal investigative
proceeding in which the Board has found the attorney to have engaged
in dilatory, obstructionist, egregious, contemptuous, or contumacious
conduct. The designated representative conducting the formal investigative
proceeding may report to the Board instances of apparently dilatory,
obstructionist, egregious, contemptuous, or contumacious conduct on
the part of an attorney. After due notice to the attorney, the Board
may take such action as the circumstances warrant, including suspending
any attorney representing a witness from further participation in
the investigative proceeding, based upon a written record evidencing
the conduct of the attorney in the formal investigative proceeding
or such other or additional written or oral presentation as the Board
may permit or direct.
(b) A witness
may inspect the transcript of the witness’ own testimony, without
retaining a copy thereof, for the purpose of making non-substantive
corrections to the transcript at a time and place that the designated
representative determines to be appropriate in consideration of all
relevant factors, including the convenience of the witness.
(c) A witness may, solely for the use of the witness and
the witness’ attorney, obtain a copy of the transcript of the
witness’ testimony, provided that the witness submits a written
request for the transcript and the witness requesting a copy of the
witness’ testimony bears the cost thereof. However, the Board
officer supervising the formal investigative proceeding may deny such
a request if, in the officer’s discretion, the provision of
the transcript may infringe the privacy of third persons involved
in the investigation, or impede or interfere with the conduct of any
investigation. If the Board issues a notice of charges or otherwise
initiates an administrative (adjudicatory) hearing, disclosure of
formal investigative transcripts obtained by the Board’s designated
representative(s) during the course of the formal investigative proceeding
will be governed by the uniform rules and the Board local rules supplementing
the uniform rules (subparts A and B of this part).
