ELC 10.14 EVIDENCE AND BURDEN OF PROOF (a) Proceedings Not Civil or Criminal. Hearing officers should be guided in their evidentiary and procedural rulings by the principle that disciplinary proceedings are neither civil nor criminal but are sui generis hearings to determine if a lawyer's conduct should have an impact on his or her license to practice law. (b) Burden of Proof. Disciplinary counsel has the burden of establishing an act of misconduct by a clear preponderance of the evidence. (c) Proceeding Based on Criminal Conviction. If a formal complaint charges a respondent lawyer with an act of misconduct for which the respondent has been convicted in a criminal proceeding, the court record of the conviction is conclusive evidence at the disciplinary hearing of the respondent’s guilt of the crime and violation of the statute on which the conviction was based. (d) Rules of Evidence. Consistent with section (a) of this rule, the following rules of evidence apply during disciplinary hearings: (1) evidence, including hearsay evidence, is admissible if in the hearing officer’s judgment it is the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. The hearing officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious; (2) if not inconsistent with subsection (1), the hearing officer shall refer to the Washington Rules of Evidence as guidelines for evidentiary rulings; (3) documents may be admitted in the form of copies or excerpts, or by incorporation by reference; (4) Official Notice. (A) official notice may be taken of: (i) any judicially cognizable facts; (ii) technical or scientific facts within the hearing officer’s or panel’s specialized knowledge; and (iii) codes or standards adopted by an agency of the United States, of this state, or of another state, or by a nationally recognized organization or association. (B) the parties shall be notified either before or during hearing, or by reference in preliminary reports or otherwise, of the material noticed and the sources thereof, including any staff memoranda and data, and they shall have an opportunity to contest the facts and material noticed. A party proposing that official notice be taken may be required to produce a copy of the material to be noticed. (e) APA as Guidance. The evidence standards in this rule are based on the evidence provisions of the Washington Administrative Procedures Act, which, when not inconsistent with these standards, should be looked to for guidance. “Shall” has the meaning in this rule ascribed to it in the APA. [Adopted effective October 1, 2002.]
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