FINRA Rule 9267

An item that is not in the official record — whether because it was never offered into evidence, was excluded under FINRA Rule 9263, or was submitted but not formally accepted — is generally not before the appellate body. 

FINRA Rule 9267's comprehensive definition of the record thus determines both what the Hearing Panel may consider in reaching its decision and what appellate bodies will review in assessing that decision.

FINRA Rule 9267 sits within the 9260 Hearing and Decision subsection of the 9200 Disciplinary Proceedings section of the 9000 Code of Procedure series. 

It was adopted by SR-NASD-97-28 effective August 7, 1997, amended by SR-NASD-97-81 effective January 16, 1998, amended by SR-NASD-99-76 effective September 11, 2000, amended by SR-FINRA-2008-021 effective December 15, 2008, and most recently amended by SR-FINRA-2018-027 effective August 3, 2018 reflecting the internal enforcement reorganization. Two selected notices are associated with the rule — 00-56 and 08-57.

FINRA Rule 9267(a): The Eight Categories of the Official Record

FINRA Rule 9267(a) defines the official record through eight specific categories of documents and materials, followed by a general retention provision. Together these eight categories encompass every significant document generated in a disciplinary proceeding from complaint through decision — the pleadings, the motions, the transcripts, the evidence, the rulings, and the decision itself.

The first category — the complaint, answers, each notice of hearing, pre-hearing order, and any amendments thereto — encompasses the foundational pleadings and scheduling documents that define the proceeding. The complaint issued under FINRA Rule 9212 and the respondent's answer under FINRA Rule 9215 are the charging and response documents that establish the scope of the case. Notices of hearing issued under FINRA Rule 9221(d) and pre-hearing orders issued under FINRA Rule 9241(e) — the CMSO and related scheduling documents — establish the procedural framework. All amendments to any of these documents, whether complaint amendments under FINRA Rule 9212(b) or answer amendments under FINRA Rule 9215(d), are part of the first record category.

The second category — each application, motion, submission, and other paper, and any amendments, motions, objections, and exceptions to or regarding them — encompasses the full motion practice record. Every motion filed under FINRA Rule 9146, every opposition, every reply permitted under FINRA Rule 9146(h), every supporting brief, and every objection or exception to any of these papers is part of the official record. This category ensures that the complete motion practice history — including pre-hearing motions, in-hearing procedural motions, and post-hearing motions if any — is preserved for appellate review. The breadth of this category means that a litigant who filed a motion that was denied has that motion and the denial order in the official record available for appellate challenge.

The third category — each transcript of a pre-hearing conference and of a hearing, and each stipulation, transcript of testimony, document, and other item admitted into evidence — is the evidentiary heart of the official record. The court reporter transcripts created pursuant to FINRA Rule 9265 are in this category. All stipulations between the parties are in this category. Every exhibit admitted into evidence at the hearing — whether testimony transcripts, documentary evidence, or physical exhibits — is in this category. This is the factual record that the Hearing Panel's findings of fact must be grounded in and that appellate bodies review when assessing whether the findings of fact are supported by substantial evidence in the record as a whole.

The fourth category — each written communication accepted at the discretion of the Hearing Officer — preserves flexibility for the Hearing Officer to incorporate into the official record written communications that arise outside the formal motion and submission process. A written communication from a party providing supplemental authority that the Hearing Officer formally accepts, a written response to a Hearing Officer inquiry, or any other written communication that the Hearing Officer determines should be part of the official record may be accepted under this fourth category.

The fifth category — with respect to a motion to disqualify a Hearing Officer under FINRA Rule 9233 or a Panelist under FINRA Rule 9234, each affidavit or transcript of testimony taken and the ruling made in connection with the request — specifically preserves the disqualification record within the official record. This category ensures that if a party challenges a disqualification decision on appeal — whether arguing that the Chief Hearing Officer should have granted a disqualification motion that was denied, or that a recusal was handled improperly — the complete disqualification record including the supporting affidavit and the ruling is before the appellate body.

The sixth category — each proposed finding of fact, conclusion of law, and post-hearing brief, and any amendments thereto, filed pursuant to FINRA Rule 9266 — preserves the post-hearing advocacy record. Every proposed finding submitted under FINRA Rule 9266, every post-hearing brief, and any amendments to these submissions are part of the official record. This category connects the Hearing Panel's decision to the parties' analytical frameworks — appellate bodies can assess whether the Panel addressed the parties' arguments and whether the decision's legal analysis is consistent with the applicable standards argued by the parties.

The seventh category — each written ruling, order, and decision issued by the Chief Hearing Officer, Hearing Officer, Hearing Panel or Extended Hearing Panel — encompasses every formal adjudicative output of the proceeding. Pre-hearing orders, evidentiary rulings, scheduling orders, motions rulings, the CMSO, and ultimately the Hearing Panel's final decision under FINRA Rule 9268 are all in this seventh category. This is the decisional record — the complete history of every formal ruling from the first pre-hearing order through the final Panel decision.

The eighth category — any other document or item accepted into the record by the Hearing Officer, the Hearing Panel, or the Extended Hearing Panel — is the residual catch-all that preserves the adjudicators' flexibility to incorporate into the official record any document or item they determine should be part of the formal record. This category cross-references FINRA Rule 9261(a)'s provision that pre-hearing submission documents do not automatically become part of the record unless the Hearing Officer, Hearing Panel, or Extended Hearing Panel orders some or all of them included pursuant to FINRA Rule 9267(a)(8) — establishing the mechanism through which pre-hearing submissions become part of the official record.

The retention provision — the record shall be retained until the date upon which FINRA's decision becomes final disciplinary action, or if applicable, upon the conclusion of any review by the SEC or the federal courts — establishes the retention period extending through all appellate review. Because FINRA disciplinary decisions may be appealed to the NAC, the SEC, and ultimately federal courts of appeals, the record must be preserved throughout this entire multi-tier appellate process. Only after all appellate proceedings have concluded and the decision has become truly final may the official record be released from the retention obligation.

FINRA Rule 9267(b): Supplemental Documents Attached to the Record

FINRA Rule 9267(b) establishes the supplemental documents framework — the category of materials that are preserved alongside the official record but do not constitute part of it. Three specific categories of supplemental documents must be attached to the record.

The first supplemental category — evidence excluded from the record under FINRA Rule 9263(c) — encompasses all evidence that was offered but excluded at the hearing. FINRA Rule 9263(c) requires excluded material to be deemed a supplemental document, attached to the record, and retained under FINRA Rule 9267. The supplemental document status preserves excluded evidence for appellate review without incorporating it into the official record that the Panel considered in making its decision.

The second supplemental category — any matter stricken from any filing or stricken during an oral presentation, including matter stricken as scandalous or impertinent under FINRA Rule 9136(e) — encompasses all stricken content. FINRA Rule 9136(e) requires stricken matter to be marked Stricken and preserved rather than destroyed — FINRA Rule 9267(b) implements this preservation requirement by designating stricken material as a supplemental document attached to the record. The preservation ensures that if a party contends on appeal that material was improperly stricken, the appellate body can review the stricken content to assess the striking decision.

The third supplemental category — a list of documents, if any, that a respondent unsuccessfully sought by motion to inspect and copy under FINRA Rule 9251(c) — preserves the withheld document discovery record. When a respondent moves under FINRA Rule 9251(c) for a list of documents the Department of Enforcement withheld and that motion is denied in whole or in part, the list of unsuccessfully sought documents becomes a supplemental record item. This preserves for appellate review any challenge to the Enforcement's withholding decisions — the appellate body can assess whether documents that were withheld over the respondent's objection should have been produced.

Supplemental documents are retained until the date upon which FINRA's decision becomes final disciplinary action or, if applicable, upon the conclusion of any review by the SEC or the federal courts — the same retention period as the official record itself. This parallel retention ensures that supplemental documents remain available throughout all appellate proceedings.

True Copy Substitution

FINRA Rule 9267(b)'s final provision — parties may submit to the Hearing Officer for substitution a true copy of a document in the record — addresses the practical problem that arises when original documents have been submitted as exhibits and the party needs to retain the original for other purposes. A party who has submitted an original document that constitutes part of the official record may request that the Hearing Officer accept a true copy in substitution, allowing the original to be returned. This substitution mechanism prevents the official record from permanently retaining original documents that parties may need for other legal, business, or personal purposes following the resolution of the disciplinary proceeding.

Connection to FINRA Rules 9261, 9263, 9265, 9266, and 9311

FINRA Rule 9267 is the definitional rule that ties together all of the prior rules in the 9260 subsection into a coherent record. FINRA Rule 9261(a)(8)'s reference to Hearing Officer acceptance of pre-hearing documents into the record operates through FINRA Rule 9267(a)(8). FINRA Rule 9263(c)'s excluded evidence supplemental document status is implemented through FINRA Rule 9267(b)(1)(A). FINRA Rule 9265's transcripts are incorporated into the record through FINRA Rule 9267(a)(3). FINRA Rule 9266's post-hearing submissions are incorporated through FINRA Rule 9267(a)(6). And FINRA Rule 9311's appellate process is the downstream consumer of the FINRA Rule 9267 record — the NAC reviews the record as FINRA Rule 9267 defines it.

Examination Relevance and Key Takeaways

FINRA Rule 9267 is tested on the Series 24 General Securities Principal examination as the official record rule — the rule defining precisely what constitutes the record that Hearing Panels decide cases on and appellate bodies review.

The key points to retain are these: FINRA Rule 9267(a) defines the official record through eight categories — pleadings and hearing notices, motions and submissions, transcripts and admitted evidence, accepted written communications, disqualification affidavits and rulings, post-hearing submissions, all written rulings and decisions, and any other items accepted into the record; the record is retained until FINRA's decision becomes final disciplinary action or until all SEC and federal court review is concluded; FINRA Rule 9267(b) establishes three categories of supplemental documents attached to but not constituting part of the record — excluded evidence under FINRA Rule 9263(c), stricken matter under FINRA Rule 9136(e), and the list of documents a respondent unsuccessfully sought under FINRA Rule 9251(c); supplemental documents are retained for the same period as the official record; parties may substitute true copies for original documents in the record; pre-hearing submission documents do not automatically become part of the record and enter only through a Hearing Officer or Panel order pursuant to FINRA Rule 9267(a)(8); the official record as FINRA Rule 9267 defines it is the foundation of all appellate review under FINRA Rule 9311 — materials not in the official record are generally not before the appellate body; and the rule was last amended August 3, 2018 through SR-FINRA-2018-027.