A respondent files a motion during a disciplinary proceeding and the Hearing Officer denies it. What place do the motion and the denial have in the official record?

The denial is in it; the motion falls away once it has been ruled on and refused

Both are in it, so the ruling can be challenged on appeal from the papers themselves

Neither is, motion practice being preserved separately from the official record

Both are in it only where the respondent gives notice of an intention to appeal

Why does it matter that transcripts, stipulations and every item admitted into evidence sit in one category of the official record?

It fixes the order in which the Hearing Panel must consider the evidence it has heard

It allows the Panel to admit further evidence after the hearing has been closed

It is the material the findings must rest on and that appellate review is measured against

It determines which party bears the cost of reproducing the exhibits on appeal

A party moves to disqualify a Panelist and the motion is refused. What does the official record contain about it?

The affidavits, any testimony taken, and the ruling made on the request

Nothing; a refused disqualification motion leaves the proceeding as it was

The ruling alone, the supporting material being returned to the moving party

A note of the refusal, the affidavits being sealed against the other parties

A Hearing Officer strikes a passage from a party's filing as scandalous. What happens to the struck passage?

It is deleted from the filing, which is then refiled in a corrected form

It is marked stricken and attached to the record as a supplemental document

It is destroyed, striking being a direction that it form no part of the proceeding

It is retained by the party that filed it, subject to production on any appeal

A respondent moves for a list of documents the Department of Enforcement has withheld, and the motion is refused. What does FINRA Rule 9267(b) do about that refusal?

Nothing; a refused discovery motion is recorded in the motion papers alone

It requires the Department to lodge the withheld documents themselves under seal

It attaches the list of documents unsuccessfully sought to the record

It defers the question to the Council, which rules on it before the hearing opens

A firm submitted an original document as an exhibit and now needs the original back for its own purposes. What does FINRA Rule 9267(c) allow?

Inspecting the original at the Office on notice, but not recovering it

Withdrawing the exhibit entirely, provided no party has relied on it

Nothing until every appeal from the decision has been finally concluded

Asking the Hearing Officer to accept a true copy in its place

At a FINRA disciplinary hearing the Hearing Officer excludes a set of account statements as unduly repetitious. A respondent's proposed finding of fact then cites that set and nothing else. Does the finding meet FINRA Rule 9266(b)'s requirement of support by specific references to the record?

No; the set is attached to the record without being part of it, so it is no record reference

Yes; every item offered at the hearing becomes part of the record once it has been marked as an exhibit there

Yes, provided the respondent also argues in its brief that the Hearing Officer was wrong to exclude the set

No; proposed findings may rest on witness testimony in the transcript, but documentary exhibits cannot be cited

A respondent puts forty exhibits in its pre-hearing submission and offers none of them at the hearing. The Hearing Panel then orders twelve of the forty included in the record. How do the forty exhibits stand?

All forty are part of the record, since an order including part of a submission brings in the whole of it

The twelve are part of the record; the other twenty-eight are attached to it as supplemental documents

The twelve are part of the record; the other twenty-eight are returned to the respondent as never offered

None is part of the record, exhibits never offered at the hearing being beyond the reach of any such order

At the hearing the Department of Enforcement shows good cause for offering a document it left out of its ten-day pre-hearing submission, and the Hearing Officer admits it. How does the document stand?

It is part of the record once the respondent has had a further ten days to answer it before the hearing closes

It is attached to the record as a supplemental document, because it was not exchanged by the pre-hearing deadline

It is part of the record as admitted evidence, on the same footing as the exhibits exchanged in advance

It may be weighed by the Hearing Panel but is held apart from the record that goes up on any appeal

Before a FINRA disciplinary hearing the Parties must exchange copies of their documentary evidence. What does FINRA Rule 9261(a) expressly allow the Hearing Officer to order about sending that evidence to the Hearing Officer as well?

That the Department alone submit it to the Hearing Officer, respondents sending theirs to the Department

That each Party file it with the Hearing Officer too, where it becomes part of the record on receipt

That the Parties submit it to the Hearing Officer jointly, as a single agreed bundle of exhibits

Once the hearing has closed, counsel for a respondent sends the Hearing Officer a letter attaching a newly published decision it regards as favourable. What decides whether the letter becomes part of the record?

Whether the Hearing Officer, in the exercise of discretion, accepts it

Whether the Department of Enforcement consents to its being placed before the Hearing Panel

Whether it reaches the Hearing Officer before the deadline for filing post-hearing briefs

Whether the Hearing Panel finds that the enclosed decision bears on one of the charges

After the hearing on the merits has begun, a respondent submits a written offer of settlement, which the Hearing Panel rejects. When the Panel later decides the case, where do the offer and its proposed order of acceptance stand?

In the record, the Hearing Panel being directed to give them no weight in deciding the merits

In the record, an offer made after the hearing has begun being treated as part of the hearing

In the record but sealed, open to the Hearing Panel and closed to any appellate body reviewing it

Outside the record, neither the offer nor the proposed order of acceptance forming part of it

Both the Department of Enforcement and the respondent file proposed findings and conclusions. The Hearing Panel's decision accepts the Department's proposals on one charge and the respondent's on a second. Which proposed findings and conclusions are part of the record?

Those the decision adopted, the rest being attached to the record as supplemental documents

Those the decision adopted, the rest having been superseded once the decision was issued

Every one filed by either side, including those the Hearing Panel declined to adopt

None of them, proposed findings being advocacy that merges into the decision itself

The Hearing Officer will not have a decision ready within the usual period, and the Chief Hearing Officer sets a later date for it by written order. Is that order part of the record?

Yes, but as a supplemental document attached to the record rather than as part of it

No; it is an administrative scheduling act of the Office of Hearing Officers, not an adjudicative order

No, unless a Party objected to the later date and so made the timetable an issue in the case

Yes; written orders of the Chief Hearing Officer are part of the record, as the Panel's are

Nobody appeals a Hearing Panel decision after it is served, and no call for review is made. Until when must the evidence the Hearing Officer excluded, attached to that record, be retained?

Until the date on which the decision becomes FINRA's final disciplinary action

Until the Hearing Panel issues its decision, excluded evidence having no use after that

Until any fine the decision imposes has been paid and any suspension it imposes has been served

Permanently, as material FINRA must keep for as long as it keeps the disciplinary record itself

A respondent appeals a Hearing Panel decision to the National Adjudicatory Council and loses. The matter goes on to review by the SEC, and a federal court review follows. When does the obligation to retain the supplemental documents end?

When the Council's decision on the appeal becomes FINRA's final disciplinary action

At the conclusion of the federal court review that follows the SEC's

At the conclusion of the SEC's review, before any court review has begun

When the Council decides the appeal, the record then passing to the SEC

A stipulation between the Parties, admitted into evidence at the hearing, already describes how the investigation behind the disciplinary proceeding began. What does that mean for the Hearing Panel's decision?

It must adopt the stipulation's account of the origin as one of its findings of fact

It must still state the origin, a stipulation being the Parties' account rather than a finding

It need not add its own statement describing the proceeding's origin

It must attach the stipulation, the origin statement being given by reference to it

A firm that put an original 200-page trade ledger into evidence asks the Hearing Officer to replace it in the record with a two-page summary of the entries. How does FINRA Rule 9267(c) bear on the request?

It provides for it where the other Parties consent to the summary standing in the ledger's place

It provides for it, provided the Hearing Officer is satisfied that the summary is accurate

It provides for it once the Hearing Panel's decision has been issued and served on the Parties

It does not provide for it, a summary not being a true copy of the ledger

A respondent moves to inspect and copy five documents the Department of Enforcement has withheld. The Hearing Officer grants the motion for two of them and denies it for the remaining three. What list is attached to the record as a supplemental document?

A list of the three documents the respondent sought and did not obtain

A list of all five documents the motion sought, whether or not obtained

A list of the two documents the Hearing Officer ordered made available

No list, a motion that partly succeeds leaving nothing to be attached

Following a FINRA disciplinary hearing, a witness puts in a proposed correction to one of her answers in the hearing transcript, and the Hearing Officer orders the correction in writing. What does the record then hold?

The corrected transcript alone, the proposal and the order being absorbed into it once made

The transcript, the witness's proposed correction and the Hearing Officer's written order

The transcript and the written order, the proposal being attached only as a supplemental document

The corrected transcript and the proposal, the written order being spent once the correction is made

Every respondent waives a hearing, the Hearing Officer does not order one, and the Hearing Panel decides to consider the matter on the record. What does the Panel decide on?

A summary of the evidence that the Department of Enforcement prepares for the Panel

The complaint alone, the waiver being treated as an admission of each of its allegations

The pleadings, the Parties' papers and any stipulations or accepted documents, with no hearing transcript

The record plus a short hearing on sanctions, which a waiver of hearing cannot exclude

On an appeal to the National Adjudicatory Council, what does FINRA Rule 9346(a), except as it otherwise provides, confine the review to?

The record made below as it stood at the decision, no briefs or argument being added to it

A fresh hearing of the witnesses, the record below serving as a guide to what was in dispute

The Hearing Panel's decision and the appeal briefs, the underlying record being consulted on request

The record made below, with the briefs and papers filed on appeal and any oral argument permitted

After the Hearing Panel's decision, a respondent finds a customer letter it never offered at the hearing and wants the National Adjudicatory Council to consider it on appeal. What must the respondent do?

Obtain leave by a motion showing good cause for not introducing it below and why it is material

Attach the letter to its appeal brief, briefs and papers on appeal being part of what is reviewed

Nothing further, the Council being free to consider any evidence that bears on the charges under review

Ask the Hearing Officer to reopen the hearing and admit the letter before the appeal is heard

On appeal, a respondent argues that it cannot pay the fine the Hearing Panel imposed. What may the Subcommittee do about that without any Party moving for it?

Reduce the fine at once, the respondent's assertion of inability to pay being taken as established

Remit the question to the Hearing Panel to take evidence on the respondent's means and decide it

Nothing; the record on appeal can be supplemented on a Party's motion and in no other way

Under FINRA Rule 9266 a Party files a post-hearing brief but no proposed findings or conclusions. Is the brief part of the record?

No, unless the Hearing Panel's decision cites the brief in dealing with an issue it raises

No; proposed findings and conclusions are the one route by which post-hearing advocacy enters the record

Yes, as a submission or other paper, though it contains no proposed findings

Yes, but as a supplemental document attached to the record rather than as part of it

A default decision was issued against a respondent who took no part in the proceeding. On appeal the respondent shows good cause for not having participated. What may the National Adjudicatory Council then do?

Admit a written statement from the respondent, but no evidence from any other source

Decide on the record made below, a default leaving nothing further for the Council to hear

Treat the default decision as void, the Department having to file a fresh complaint

Hear evidence, not being confined to the record made in the respondent's absence

FINRA Rule 9267 | Financial Regulation Courses

Record; Supplemental Documents Attached to Record; Retention

SERIES 24 | FINANCIAL REGULATION COURSES

FINRA Rule 9267 defines the complete contents of the official record of a FINRA disciplinary proceeding, establishes the categories of supplemental documents that are attached to but do not constitute part of the record, sets the retention period for both the record and supplemental documents, and provides for the substitution of true copies for original documents in the record.

The rule is the definitional foundation of FINRA's appellate review system — because every appellate body that reviews a FINRA disciplinary decision, from the National Adjudicatory Council through the SEC and ultimately to federal courts of appeals, reviews on the basis of the official record as FINRA Rule 9267 defines it.

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, and most recently amended by SR-FINRA-2008-021 effective December 15, 2008. One selected notice is associated with the rule — 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; although paragraph (a) is headed Contents of the Record, Retention, its current text lists the contents only. 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 — all proposed findings and conclusions — preserves the post-hearing advocacy record. Every proposed finding and conclusion submitted under FINRA Rule 9266 is part of the official record under this category, and every post-hearing brief, as a submission or other paper, is part of it under the second category. 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 is the one cross-referenced by 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 in the current rule text is in paragraph (b)(2) and is stated for supplemental Documents — they 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 — a period extending through all appellate review. Because FINRA disciplinary decisions may be appealed to the NAC, the SEC, and ultimately federal courts of appeals, that period runs throughout this entire multi-tier appellate process.

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. A supplemental document is any document submitted to the Hearing Officer that did not become part of the record, and the rule names three examples that must be attached to the record.

The first supplemental category — a document not admitted by the Hearing Officer, Hearing Panel or Extended Hearing Panel, including evidence excluded under FINRA Rule 9263(b) — encompasses all evidence that was offered but excluded at the hearing. FINRA Rule 9263(b) 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. This retention ensures that supplemental documents remain available throughout all appellate proceedings.

True Copy Substitution

FINRA Rule 9267(c) — 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)'s reference to Hearing Officer acceptance of pre-hearing documents into the record operates through FINRA Rule 9267(a)(8). FINRA Rule 9263(b)'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 proposed findings and conclusions are incorporated through FINRA Rule 9267(a)(6), and its post-hearing briefs through FINRA Rule 9267(a)(2). 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.

Admitted, Accepted or Only Submitted: How a Document Becomes Part of the Record

FINRA Rule 9267(a) lists what the record "shall consist of", and several of its categories turn on an act of the adjudicators rather than on a party's filing. Evidence enters by admission: the third category covers each stipulation, transcript of testimony, "Document, and other item admitted into evidence". Written communications enter when the Hearing Officer accepts them under the fourth category. Any other Document or item enters when it is "accepted into the record by the Hearing Officer, the Hearing Panel or, if applicable, the Extended Hearing Panel" under the eighth.

Handing a Document to the Hearing Officer is therefore not the same as putting it in the record. FINRA Rule 9267(b)(1) defines a supplemental Document attached to the record as "any Document submitted to the Hearing Officer that did not become part of the record". A Document that is submitted but never admitted or accepted is attached to the record and retained, but under FINRA Rule 9267(b)(2) it "shall not constitute part of the record".

Consider a hearing at which the Department of Enforcement offers a customer's monthly account statements, and later offers a second, identical set of the same statements taken from a different file. The Hearing Officer admits the first set and excludes the second as unduly repetitious, one of the grounds on which FINRA Rule 9263(a) allows evidence to be excluded. The first set is part of the record as items admitted into evidence. The second set is a Document not admitted. It is attached to the record as a supplemental Document and retained, but it is not part of the record.

Being attached to the record does not make an item part of it, and that matters after the hearing. FINRA Rule 9266(b) requires that "Proposed findings of fact or other statements of fact in briefs shall be supported by specific references to the record." Suppose a respondent's proposed finding of fact rests only on the excluded set of statements, on the footing that the set is attached to the record and kept with it. The set is not part of the record, so a reference to it is not a reference to the record, and the proposed finding is not supported as FINRA Rule 9266(b) requires.

Exclusion is often fought in writing. Suppose the respondent files a motion asking the Hearing Officer to exclude one of the Department's exhibits, the Department files an objection, and the Hearing Officer grants the motion in a written order. The motion and the objection are part of the record under the second category, and the written order under the seventh, although the exhibit the order excluded is not part of the record and is attached only as a supplemental Document.

Pre-Hearing Exhibits and Evidence Offered Late

FINRA Rule 9261(a) requires each Party, no later than ten days before the hearing or at an earlier date the Hearing Officer specifies, to submit to all other Parties and to the Hearing Officer copies of its documentary evidence and the names of the witnesses it intends to present. That exchange does not build the record. FINRA Rule 9261(a) states that the documentary evidence submitted before the hearing "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 Rule 9267(a)(8)". FINRA Rule 9261(a) also allows the Hearing Officer to order each Party to refrain from submitting its documentary evidence to the Hearing Officer.

Consider a respondent whose pre-hearing submission contains forty exhibits, none of which is offered at the hearing. The Hearing Panel orders twelve of them included in the record. Those twelve become part of the record under the eighth category, because an order under FINRA Rule 9261(a) may reach "some or all" of a Party's submission. The other twenty-eight do not become part of the record. They were submitted to the Hearing Officer and did not become part of the record, so they fall within FINRA Rule 9267(b)(1)'s definition of a supplemental Document: attached to the record and retained, but not part of it.

Evidence that missed the pre-hearing exchange is not shut out of the record for that reason alone. FINRA Rule 9261(c) provides that, notwithstanding paragraph (a), "a Party, for good cause shown, may seek to submit any additional evidence at the hearing as the Hearing Officer, in his or her discretion, determines may be relevant and necessary for a complete record." Suppose the Department shows good cause for offering at the hearing a document it did not include in its ten-day submission, and the Hearing Officer admits it. The document is part of the record as an item admitted into evidence, on the same footing as the exhibits that were exchanged in advance. Had the Hearing Officer declined to admit it, it would have been a Document not admitted, attached to the record as a supplemental Document.

Written Communications and the Hearing Officer's Discretion

The fourth category of the record is "each written communication accepted at the discretion of the Hearing Officer". Consider a proceeding in which, after the hearing, the respondent's counsel writes to the Hearing Officer enclosing a recently issued decision that counsel says supports the respondent's position. The letter becomes part of the record if the Hearing Officer accepts it, and whether to accept it is the Hearing Officer's discretion under the fourth category.

If the Hearing Officer declines to accept the letter, it does not simply disappear. It is a Document submitted to the Hearing Officer that did not become part of the record, which is the definition of a supplemental Document in FINRA Rule 9267(b)(1). It is attached to the record and retained, but it is not part of the record.

Stricken Matter in Practice

The second example of a supplemental Document in FINRA Rule 9267(b)(1) is "any matter stricken from any filing or stricken during an oral presentation". Striking is not limited to written papers. Suppose that during closing argument at the hearing the Hearing Officer strikes a series of remarks made by a Party's representative. The stricken remarks are a supplemental Document attached to the record, as a passage stricken from a written brief would be. They are retained, and they are not part of the record.

Matter stricken as scandalous or impertinent under FINRA Rule 9136(e) is the example FINRA Rule 9267(b)(1)(B) names, but the provision covers "any matter stricken from any filing". Striking also arises under FINRA Rule 9280, which allows a Hearing Officer, Hearing Panel or, if applicable, an Extended Hearing Panel, where a Party engages in conduct in violation of its order or other contemptuous conduct, to make orders that include "an order providing that pleadings or a specified part of the pleading shall be stricken". Suppose a Hearing Panel issues a written order striking part of a respondent's answer because the respondent disobeyed an earlier order. The stricken part of the answer is a supplemental Document attached to the record, and the Panel's written order is part of the record under the seventh category.

Settlement Offers and the Record

A Respondent may propose in writing an offer of settlement at any time under FINRA Rule 9270(a). The second category of the record covers "each application, motion, submission, and other paper", but FINRA Rule 9270 settles separately what becomes of an offer that fails. When an offer of settlement is rejected by the Hearing Panel or, if applicable, the Extended Hearing Panel, the Review Subcommittee or the National Adjudicatory Council, the Respondent is notified in writing and the offer and the proposed order of acceptance are deemed withdrawn. FINRA Rule 9270(h) then provides that "The rejected offer and proposed order of acceptance shall not constitute a part of the record in any proceeding against the Respondent making the offer."

Consider a respondent who, after the hearing on the merits has begun, submits an offer of settlement that the Hearing Panel rejects. When the Panel later decides the case, the rejected offer and the proposed order of acceptance are not part of the record on which the proceeding goes forward. The same applies to a different proceeding brought later against the same respondent, because FINRA Rule 9270(h) speaks of "any proceeding against the Respondent making the offer".

The offer is also kept out of the evidence. FINRA Rule 9270(j) provides that a Respondent whose offer is rejected "shall not be prejudiced by the offer, which may not be introduced into evidence in connection with the determination of the issues involved in the pending complaint or in any other proceeding." Suppose that two years after a rejected offer, the Department brings a new complaint against the same respondent on different conduct. The Department cannot introduce the earlier rejected offer into evidence in the new proceeding.

From Complaint to Decision: What Accumulates in the Record

The first category of the record is "the complaint, answers, each notice of hearing, pre-hearing order, and any amendments thereto". An amendment adds to the record rather than replacing what came before. Under FINRA Rule 9212(b) the Department of Enforcement may file and serve an amended complaint once as a matter of course at any time before the respondent answers; otherwise, the Hearing Officer may permit an amendment on the Department's motion. Suppose the Department amends its complaint before the respondent answers, and the respondent then answers the amended complaint. The record contains the original complaint, the amended complaint and the answer.

The sixth category is "all proposed findings and conclusions". Under FINRA Rule 9266(a), whether the Parties file proposed findings of fact and conclusions of law, post-hearing briefs, or both, is at the discretion of the Hearing Officer, who may order the proposed findings and conclusions filed together with, or as part of, the post-hearing briefs. Suppose both the Department and the respondent file proposed findings and conclusions, and the Hearing Panel's decision adopts the Department's on one cause of action and the respondent's on another. Every one of those proposed findings and conclusions is part of the record, including those the Panel declined to adopt.

The seventh category reaches written rulings, orders and decisions issued by the Chief Hearing Officer as well as by the Hearing Officer, the Hearing Panel and, if applicable, the Extended Hearing Panel. FINRA Rule 9268(a) requires the Hearing Officer to prepare the written decision within 60 days after the final date allowed for filing proposed findings of fact, conclusions of law and post-hearing briefs, "or by a date established at the discretion of the Chief Hearing Officer". Where the Chief Hearing Officer sets a later date for the decision by written order, that order is part of the record.

Corrections to the transcript leave their own trail in the record. FINRA Rule 9265(c) allows a Party or witness, before the filing of post-hearing briefs or proposed findings and conclusions or within an earlier time the Hearing Officer orders, to seek to correct his or her transcript, and requires a proposed correction to be submitted to the Hearing Officer by affidavit. Upon notice to all Parties, the Hearing Officer may order the correction. Suppose a witness submits an affidavit proposing a correction to one answer and the Hearing Officer orders it in writing. The affidavit is a submission within the second category, and the written order is part of the record under the seventh, alongside the transcript itself under the third.

How Long Supplemental Documents Are Kept

FINRA Rule 9267(b)(2) sets the retention period for supplemental Documents: they "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." The date on which a decision becomes final disciplinary action therefore governs how long excluded evidence, stricken matter and a list of unsuccessfully sought documents must be kept.

Where nobody appeals, that date comes from FINRA Rule 9268(e): "If not timely appealed pursuant to Rule 9311 or timely called for review pursuant to Rule 9312, the majority decision shall constitute final disciplinary action of FINRA". FINRA Rule 9311(a) allows a Respondent or the Department of Enforcement to file a written notice of appeal within 25 days after service of the decision. Suppose a Hearing Panel decision is served, no Party files a notice of appeal and the decision is not called for review. The supplemental Documents attached to that record are retained until the date on which the decision becomes final disciplinary action; the issuance of the Hearing Panel's decision does not end the retention.

A default decision follows the same pattern under FINRA Rule 9269(d): if it is not appealed pursuant to FINRA Rule 9311 or called for review pursuant to FINRA Rule 9312 within 25 days after the date the Office of Hearing Officers serves it on the Parties, it becomes the final disciplinary action of FINRA.

Where the matter goes further, so does the retention. Suppose a respondent appeals to the National Adjudicatory Council, loses, and the matter then goes on to review by the SEC. The supplemental Documents are retained until the conclusion of that SEC review and, if a review by the federal courts follows, until the conclusion of that review.

How the Decision Draws on the Record

FINRA Rule 9268(b) lists what a Hearing Panel decision must contain, and its first item is tied to the record: "a statement describing the investigative or other origin of the disciplinary proceeding, if not otherwise contained in the record". Suppose the parties' stipulation, which is part of the record under the third category, already describes how the investigation began. The decision does not need to add a separate statement of the proceeding's origin, because that origin is already contained in the record.

True Copies in Practice

FINRA Rule 9267(c) provides: "Parties may submit to the Hearing Officer for substitution a true copy of a Document in the record." What is substituted must be a true copy of the Document. Suppose a firm that put an original 200-page trade ledger into evidence asks to replace it with a two-page summary of the entries. A summary is not a true copy of the ledger, so the request falls outside what FINRA Rule 9267(c) provides for. A complete, accurate copy of the ledger is what the rule allows to be substituted.

The Withheld Document List in Practice

The third example of a supplemental Document is "a list of Documents, if any, that a Respondent unsuccessfully sought by motion to inspect and copy under Rule 9251(c)". FINRA Rule 9251(c) allows the Hearing Officer to require the Department of Enforcement to submit to the Hearing Officer a list of Documents withheld under FINRA Rule 9251(b), or any Document withheld. Upon review, the Hearing Officer may order the Department to make the list or any withheld Document available to the other Parties for inspection and copying, unless federal law prohibits disclosure of the Document or its existence. A motion to require the Department to produce a list of withheld Documents "shall be based upon some reason to believe that a Document is being withheld in violation of the Code."

Consider a respondent who moves to inspect and copy five Documents the Department has withheld. The Hearing Officer orders two of them made available and refuses the other three. The list attached to the record as a supplemental Document is a list of the three Documents the respondent unsuccessfully sought; the two it obtained are not Documents it "unsuccessfully sought". The words "if any" allow for the case where there is no such Document to list.

Pre-Hearing Orders and Cases Decided Without a Hearing

The first category of the record includes each "pre-hearing order". FINRA Rule 9241(e) requires that, at or following the conclusion of any pre-hearing conference, "the Hearing Officer shall enter a written ruling or order that recites any agreements reached and any procedural determinations made by the Hearing Officer." Suppose the Parties agree at a pre-hearing conference on the order in which witnesses will be called, and the Hearing Officer fixes a date for exchanging exhibits. Both the agreement and the determination are recited in the written pre-hearing order, and that order is part of the record, alongside the transcript of the conference under the third category.

The record also matters where there is no hearing at all. Under FINRA Rule 9221(c), if all Respondents waive a hearing and the Hearing Officer does not order one, "the Hearing Panel or, if applicable, the Extended Hearing Panel, may order a hearing or may consider the matter on the record, as defined in Rule 9267." Suppose a respondent files an answer without requesting a hearing, and the Panel decides to consider the matter on the record. The Panel then decides on what the categories of FINRA Rule 9267(a) hold in that case, such as the complaint and answer, the Parties' papers, any stipulations, any pre-hearing conference transcripts and orders, and any Document accepted into the record. There is no hearing transcript, because no hearing was held.

The Record Before the National Adjudicatory Council

On an appeal, FINRA Rule 9346(a) limits the National Adjudicatory Council's review, except as that paragraph provides otherwise, to "the record, as defined in Rule 9267, supplemented by briefs and other papers submitted to the Subcommittee or, if applicable, the Extended Proceeding Committee, and the National Adjudicatory Council" and "any oral argument permitted under this Code." What the record holds when the Hearing Panel decides is therefore what the appellate body works from, with the appeal briefs and argument added.

New evidence needs permission. FINRA Rule 9346(a) provides that "A Party may introduce additional evidence only with prior approval of the Subcommittee or, if applicable, the Extended Proceeding Committee, or the National Adjudicatory Council". Under FINRA Rule 9346(b), a motion for leave to introduce additional evidence must describe each item of proposed new evidence, "demonstrate that there was good cause for failing to introduce it below, demonstrate why the evidence is material to the proceeding", and be filed and served. Suppose a respondent, after the Hearing Panel's decision, finds a customer letter it never offered at the hearing and wants the Council to consider it. Attaching the letter to its appeal brief is not enough. It must obtain leave by a motion showing good cause for not introducing the letter below and showing why the letter is material.

The appellate body can also add to the record itself. FINRA Rule 9346(f) allows the Subcommittee or, if applicable, the Extended Proceeding Committee, or the National Adjudicatory Council, on its own motion, to "order that the record be supplemented with such additional evidence as it may deem relevant", including ordering "a Respondent who asserts his or her inability to pay a monetary sanction to file a sworn financial statement and to keep such statement current". Suppose a respondent argues on appeal that it cannot pay the fine the Hearing Panel imposed. The Subcommittee may order the respondent to file a sworn financial statement and keep it current, and that statement supplements the record without any Party having moved for it.

A Party that did not take part in the proceeding below is not simply confined to the record made without it. Under FINRA Rule 9346(a), "If an appealing Party shows good cause for failure to participate in the disciplinary proceeding below, the National Adjudicatory Council may hear evidence and consider the disciplinary proceeding pursuant to Rule 9344(a)." Suppose a respondent against whom a default decision was issued appeals and shows good cause for not having taken part. The Council may then hear evidence, rather than deciding only on the record made in the respondent's absence.

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; supplemental documents are retained until FINRA's decision becomes final disciplinary action or until all SEC and federal court review is concluded; FINRA Rule 9267(b) defines supplemental documents, attached to but not constituting part of the record, as documents submitted to the Hearing Officer that did not become part of the record, naming three examples — excluded evidence under FINRA Rule 9263(b), stricken matter under FINRA Rule 9136(e), and the list of documents a respondent unsuccessfully sought under FINRA Rule 9251(c); 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 December 15, 2008 through SR-FINRA-2008-021.