FINRA Rule 9261

FINRA Rule 9261(a): The Ten-Day Pre-Hearing Submission

FINRA Rule 9261(a) establishes the final pre-hearing disclosure obligation — the ten-day deadline by which each party must submit to all other parties and to the Hearing Officer copies of all documentary evidence and the names of all witnesses the party intends to present at the hearing. This ten-day submission is the terminal disclosure event in the pre-hearing preparation sequence — the deadline that brings together the documentary evidence and witness information that each party has assembled through the FINRA Rule 9251 discovery process, the FINRA Rule 9242 pre-hearing submission framework, and their own independent investigation, and presents it to all parties and the Panel in the organized form that will be used at the hearing.

The Hearing Officer may specify an earlier deadline than ten days — the CMSO issued at the initial pre-hearing conference under FINRA Rule 9241(e) typically establishes the specific pre-hearing submission deadlines applicable to the case, which may be considerably earlier than the ten-day statutory minimum for complex cases with voluminous exhibits and multiple witnesses. The ten-day deadline in FINRA Rule 9261(a) is a floor — the absolute minimum — not a default that applies absent a specific Hearing Officer order.

The evidentiary status of documents submitted under FINRA Rule 9261(a) is carefully managed. Documentary evidence submitted to the Hearing Officer before the hearing pursuant to paragraph (a) shall not become part of the record unless the Hearing Officer, Hearing Panel, or Extended Hearing Panel orders some or all of it included pursuant to FINRA Rule 9267(a)(8). This non-automatic record inclusion status means that pre-hearing submission documents remain candidate exhibits — they are before the Panel for identification and preparation purposes but do not become part of the official record of the proceeding until they are formally admitted at the hearing. A document submitted in a party's pre-hearing submission but not offered or admitted into evidence at the hearing does not become part of the official record and cannot be considered by the Panel in its decision.

The Hearing Officer may order each party to refrain from submitting documentary evidence to the Hearing Officer directly — instead requiring that all pre-hearing exhibit submissions be made only to the opposing parties and not filed with OHO until the hearing itself, when they will be formally offered and either admitted or excluded. This Hearing Officer discretion to manage exhibit flow reflects the practical reality that in some cases — particularly those with modest evidentiary records — the administrative overhead of managing pre-hearing exhibit submissions through OHO's file system is not justified by any corresponding benefit.

The CMSO and Pre-Hearing Exhibit Compliance

The practical implementation of FINRA Rule 9261(a) in specific cases is governed by the CMSO's specific exhibit submission requirements. OHO Order 23-29 — involving a respondent's non-compliant pre-hearing submission — confirmed the binding nature of the CMSO's exhibit format requirements: the Hearing Officer rejected a respondent's exhibit list and proposed hearing exhibits that did not comply with the CMSO's requirements and granted leave to refile in compliant form. The CMSO typically specifies not only the deadline for pre-hearing submissions but also the format — exhibit binders organized by exhibit number with brief description and authenticity statements, electronic file formats for Portal submission, and specific procedures for challenging an opposing party's proposed exhibits.

FINRA Rule 9261(b): The Right to Be Heard and the Video Conference Authority

FINRA Rule 9261(b) establishes two provisions. The first — the foundational right to be heard — provides that if a hearing is held, a party shall be entitled to be heard in person, by counsel, or by the party's representative. This right mirrors FINRA Rule 9110(b)'s general principle that associated persons have the same rights as member firms in Code proceedings, and FINRA Rule 9141(b)'s framework establishing who may appear in a representative capacity. The right to be heard in person, by counsel, or by representative is the hearing equivalent of the appearance right established at the pleadings stage — at the hearing a party may appear personally, through an attorney who has filed a notice of appearance under FINRA Rule 9141, or through a non-attorney representative qualifying under FINRA Rule 9141(b).

The second provision — the video conference authority — is FINRA Rule 9261(b)'s most recently amended and currently most operationally significant feature. The provision as currently written — following the August 23, 2023 permanent amendment through SR-FINRA-2023-008 — provides that upon a determination that proceeding in person may endanger the health or safety of the participants or would be impracticable, or upon consideration of a joint motion of the parties for good cause shown, the Chief Hearing Officer or Deputy Chief Hearing Officer may in the exercise of reasonable discretion order the hearing to be conducted in whole or in part by video conference.

The video conference authority's legislative history reflects a significant evolution in FINRA's hearing format policy. Prior to March 2020, FINRA Rule 9261(b) contained no video conference provision — all disciplinary hearings were conducted in person at OHO offices or hearing venues around the country. The COVID-19 pandemic forced an emergency rethinking of in-person hearing requirements: FINRA administratively postponed all in-person OHO hearings beginning March 16, 2020, and adopted temporary video conference authority through SR-FINRA-2020-027 in September 2020 — allowing COVID-19 health and safety concerns to justify video conference hearings. FINRA extended this temporary authority multiple times through 2021 and 2022, accumulating substantial operational experience with video conference disciplinary hearings during those years.

As Regulatory Notice 23-13 explained, the 2023 permanent amendment was motivated by the operational success of video conference hearings during the temporary period: FINRA had used high-quality, secure, and user-friendly technology that allowed video conference hearings to parallel in-person hearings in effectiveness, while providing significant efficiency benefits including reduced travel costs, scheduling flexibility, and accessibility for participants in different geographic locations. The permanent amendment expanded the triggering conditions beyond COVID-19 health concerns to include any determination that proceeding in person would be impracticable — recognizing that health emergencies are not the only circumstance where in-person hearings may be operationally unworkable — and added a joint motion pathway allowing parties who mutually prefer video conference format to obtain it upon a good cause showing.

The reasonable discretion standard for the Chief Hearing Officer's or Deputy Chief Hearing Officer's video conference order reflects the balance between flexibility and fairness — video conference hearings are not available on demand or as a matter of right, but require a genuine determination that in-person proceedings are health-endangering or impracticable, or that the parties have jointly demonstrated good cause for video conference format. Regulatory Notice 23-13 confirmed that in deciding whether to order video conference proceedings, the Chief Hearing Officer or Deputy Chief Hearing Officer could consider a variety of factors including individual health concerns of participants, access to video conference technology, whether a party has delayed or refused to appear in person, and whether proceeding by video conference would materially disadvantage any party.

FINRA Rule 9261(c): Good Cause Exception for Additional Evidence

FINRA Rule 9261(c) preserves a party's ability to seek admission of evidence at the hearing that was not disclosed in the FINRA Rule 9261(a) ten-day pre-hearing submission — notwithstanding paragraph (a)'s disclosure obligation, a party for good cause shown may seek to submit any additional evidence at the hearing as the Hearing Officer in their discretion determines may be relevant and necessary for a complete record. This good cause exception serves an important fairness function: the ten-day pre-hearing submission deadline is a procedural requirement that promotes efficient hearing management, but it should not operate to exclude genuinely important evidence that a party could not reasonably have identified and disclosed within the deadline.

Good cause for late-disclosed evidence might include newly discovered evidence that came to the party's attention after the ten-day deadline despite reasonable pre-hearing investigation, evidence whose relevance became apparent only through the testimony of an opposing witness at hearing, or other circumstances where the lateness of the disclosure reflects genuine practical necessity rather than strategic timing or negligence. The Hearing Officer's discretion over admission of late-disclosed evidence — assessing both the good cause for late disclosure and whether the evidence is relevant and necessary for a complete record — ensures that the exception does not swallow the rule. A party who simply failed to complete their exhibit preparation in time, or who deliberately held back evidence to spring at hearing, has not demonstrated good cause.

The relevant and necessary for a complete record standard for FINRA Rule 9261(c) admission is higher than the general relevance standard under FINRA Rule 9263 — it requires both relevance and necessity, the latter reflecting that the evidence must be important enough to justify the disruption of admitting undisclosed material during the hearing. The complete record purpose — ensuring that the Hearing Panel's decision rests on the full evidentiary foundation necessary to reach an accurate conclusion — is the policy rationale that justifies the exception when both good cause and necessity are demonstrated.

The Hearing Format and the Guide to the Disciplinary Hearing Process

FINRA's Guide to the Disciplinary Hearing Process describes the overall structure of the disciplinary hearing that FINRA Rule 9261 and the subsequent rules in the 9260 subsection govern. Disciplinary hearings typically proceed in the following order: opening statements by each party, presentation of the Department of Enforcement's evidence-in-chief through witness testimony and documentary exhibits, cross-examination by respondents' counsel, redirect examination, presentation of each respondent's defense evidence, cross-examination by Enforcement, rebuttal evidence if any, and closing arguments. Throughout the hearing the Hearing Officer manages the proceeding pursuant to FINRA Rule 9235(a)(2)'s authority to regulate the course of the hearing, ruling on evidentiary objections under FINRA Rule 9263 and managing time and presentation logistics.

The Guide confirms the practical flexibility of FINRA hearings relative to federal court trials: formal rules of evidence do not apply, the Hearing Officer may look to the Federal Rules of Evidence as a guide but is not bound by them, parties must succinctly state grounds for objections on the record, and the Panel actively questions witnesses as well as allowing party examination. All hearings are recorded by court reporter and transcribed under FINRA Rule 9265.

Connection to FINRA Rules 9242, 9263, 9265, and 9267

FINRA Rule 9261 operates in direct sequence with FINRA Rule 9242's pre-hearing submission framework — both rules govern pre-hearing disclosure of evidence and witnesses, with FINRA Rule 9242 governing the broader CMSO-scheduled submission and FINRA Rule 9261(a) establishing the terminal ten-day minimum deadline. FINRA Rule 9263 — Evidence: Admissibility — governs the standards for admitting or excluding evidence at the hearing that FINRA Rule 9261 structures. FINRA Rule 9265 — Record of Hearing — governs the court reporter recording of every hearing conducted under FINRA Rule 9261. FINRA Rule 9267 — Record; Supplemental Documents Attached to Record — defines the record that the hearing proceedings produce and clarifies the status of pre-hearing submissions under FINRA Rule 9261(a)(8).

Examination Relevance and Key Takeaways

FINRA Rule 9261 is tested on the Series 24 General Securities Principal examination as the foundational hearing procedure rule — covering the pre-hearing evidence submission requirement, the right to be heard, the video conference authority, and the exceptional additional evidence mechanism.

The key points to retain are these: FINRA Rule 9261(a) requires each party to submit to all other parties and the Hearing Officer copies of documentary evidence and witness names no later than ten days before the hearing unless the Hearing Officer specifies an earlier deadline; pre-hearing submission documents do not automatically become part of the official record — they must be ordered included pursuant to FINRA Rule 9267(a)(8) to become part of the record; FINRA Rule 9261(b) grants every party the right to be heard at a hearing in person, by counsel, or by their representative; FINRA Rule 9261(b) also provides that the Chief Hearing Officer or Deputy Chief Hearing Officer may in reasonable discretion order a hearing conducted in whole or in part by video conference upon a determination that in-person proceedings would endanger health or safety or would be impracticable, or upon consideration of a joint motion of the parties for good cause shown; the video conference authority was permanently codified by SR-FINRA-2023-008 effective August 23, 2023 as announced in Regulatory Notice 23-13, making permanent the temporary provision first adopted during COVID-19 in 2020 and expanding the triggering conditions beyond pandemic health concerns; FINRA Rule 9261(c) permits admission of additional evidence at the hearing not disclosed in the ten-day pre-hearing submission upon good cause shown and Hearing Officer determination that the evidence is relevant and necessary for a complete record; and the rule was last amended August 23, 2023 through SR-FINRA-2023-008.