FINRA Rule 9313

A second paragraph confirms that parties may seek review of any Counsel decision by motion to the NAC, the Review Subcommittee, a Subcommittee, or an Extended Proceeding Committee. Together these provisions create the complete framework for NAC Counsel's distinctive institutional role — positioned between the adjudicative authority of the NAC itself and the administrative needs of the appellate process.

FINRA Rule 9313 sits within the 9310 Appeal to or Review by National Adjudicatory Council subsection of the 9300 Review of Disciplinary Proceeding series. It was adopted by SR-NASD-97-28 effective August 7, 1997, amended by SR-FINRA-2008-021 effective December 15, 2008, and last amended by SR-FINRA-2012-007 effective March 9, 2012 — which conformed FINRA Rule 9313 to FINRA Rule 9136's authority regarding the number of copies of papers filed. One selected notice is associated with the rule — 08-57.

The Institutional Position of Counsel to the NAC

Counsel to the NAC occupies a distinctive institutional position in FINRA's appellate framework that requires careful distinction from two other institutional roles with which it might be confused. 

The first is the Department of Enforcement's advocacy role — Enforcement attorneys who appear as advocates in disciplinary proceedings and appellate proceedings are not Counsel to the NAC. 

They are parties to the proceedings, represented by counsel of their own. The second is the NAC members' adjudicative role — NAC members who vote on whether to affirm, modify, or reverse Hearing Panel decisions are the adjudicators. Counsel to the NAC is neither advocate nor adjudicator but advisor — an OGC attorney who advises the NAC adjudicative body on legal standards, procedural requirements, and the quality of Hearing Panel analysis, while also managing the administrative logistics of the appellate proceedings.

FINRA Rule 9120(d) defines Counsel to the National Adjudicatory Council as an OGC attorney responsible for advising the NAC, Review Subcommittee, Subcommittee, or Extended Proceeding Committee on disciplinary proceedings on appeal — confirming the advisory function as the definitional core of the role. The FINRA Rule 9144(a) separation of functions framework — which prohibits Interested FINRA Staff from advising Adjudicators — specifically excludes Counsel to the NAC from that prohibition because Counsel to the NAC is performing a legitimate advisory function to the adjudicative body, not an improper prosecutorial influence on adjudicative decisions.

FINRA Rule 9332 — Disqualification and Recusal — specifically includes Counsel to the NAC within its disqualification framework, confirming that Counsel's advisory role is considered sufficiently integrated with the adjudicative process to require the same impartiality protections as NAC members, Subcommittee panelists, and Review Subcommittee members. A Counsel to the NAC who has a conflict of interest or bias, or circumstances where their fairness might reasonably be questioned, must notify the Chair or Vice Chair of the NAC and withdraw from the matter.

FINRA Rule 9313(a): The Eight Ministerial and Administrative Powers

FINRA Rule 9313(a) grants Counsel to the NAC authority to take ministerial and administrative actions to further the efficient administration of a proceeding, with eight specific powers enumerated.

The first power — directing the Office of Hearing Officers to complete and transmit a record of a disciplinary proceeding to the NAC in accordance with FINRA Rule 9267 — enables Counsel to manage the record transmission process that FINRA Rule 9321 requires OHO to complete within twenty-one days of appeal filing. When OHO's assembly and transmittal of the record raises specific issues — questions about record completeness, requests for supplemental documents, or coordination of the index preparation — Counsel to the NAC can direct OHO on these administrative matters directly rather than requiring a formal NAC order for each record management issue.

The second power — establishing or amending a briefing schedule under FINRA Rule 9347(b), but not shortening a briefing schedule except with the consent of the Parties — gives Counsel to the NAC broad scheduling authority for appellate briefing with one important protection. Counsel can set initial briefing schedules, extend them when parties request additional time, and adjust them for good cause — but cannot compress a briefing schedule that parties are relying on to prepare their appellate submissions without the parties' consent. This consent requirement for schedule shortening ensures that parties' preparation time is protected from unilateral administrative decisions by Counsel that would disadvantage one or both parties.

The third power — permitting a brief or any other document required to be filed to vary from the requirements of the Rule 9130 Series as provided in FINRA Rule 9347(a) — gives Counsel discretion to accommodate specific formatting or filing variations in appellate briefs when the standard Rule 9130 Series requirements create impracticalities in a specific proceeding. For example, Counsel might permit a party to submit an oversized appendix, file in an alternative format, or vary from standard page limit or citation requirements when the specific circumstances of the appeal warrant it.

The fourth power — establishing the date, time, and location of an oral argument and providing for notice of the hearing under FINRA Rule 9341 — is the primary logistics management power for oral argument. Counsel to the NAC handles the scheduling of appellate oral argument — coordinating the availability of the Subcommittee panelists, the parties and their counsel, and the NAC's hearing facilities. This scheduling function is one of the most practically significant of Counsel's administrative powers given the coordination complexity of assembling multiple decision-makers and advocates for oral argument sessions.

The fifth power — for other than a Party and counsel or a person acting in a representative capacity, determining who may attend a hearing — gives Counsel control over the guest list at appellate proceedings. Parties and their counsel have automatic attendance rights. Other persons — observers, interested stakeholders, members of the public, media representatives — may attend only with Counsel's permission. This gatekeeping function protects the integrity and orderly conduct of appellate proceedings without restricting the parties' own rights.

The sixth power — ruling on a motion by a Party to request to lengthen or shorten a period of time prescribed by the Code of Procedure — is the time period management function. Parties frequently need extensions of briefing deadlines, additional time to respond to supplemental briefing requests, or other time modifications in the course of appellate proceedings. Counsel to the NAC handles these routine time modification requests rather than requiring a formal NAC or Subcommittee ruling on each one, enabling efficient proceeding management without burdening the adjudicative body with administrative scheduling decisions.

The seventh power — requesting the Parties to submit briefs on specific issues the NAC will consider if those issues were not previously raised in the notice of appeal or cross-appeal — enables Counsel to the NAC to facilitate the NAC's consideration of issues identified during its review that were not specifically briefed by the parties. FINRA Rule 9312(b) confirms that the notice of review does not limit the NAC's authority to consider any issue in the record — Counsel's authority to request supplemental briefing on such issues ensures that the parties have a fair opportunity to address them before the NAC decides.

The eighth power — establishing the number of copies of all papers that shall be filed with the Adjudicator under FINRA Rule 9136 — is the copy requirement management function added by the March 2012 conforming amendment. This power allows Counsel to specify the number of physical or electronic copies of appellate submissions that parties must file based on the specific needs of the Subcommittee or Extended Proceeding Committee hearing the appeal.

FINRA Rule 9313(b): Party Review Right

FINRA Rule 9313(b) establishes the oversight mechanism for Counsel to the NAC's administrative decisions — a party seeking review of any Counsel decision may make a motion to the National Adjudicatory Council, the Review Subcommittee, a Subcommittee, or if applicable an Extended Proceeding Committee. This motion right ensures that Counsel's administrative authority is not the final word on any matter affecting parties' rights in the appellate proceeding. A party who believes Counsel has improperly denied a time extension, improperly restricted hearing attendance, improperly required supplemental briefing, or made any other administrative decision that prejudices their interests can bring that decision to the attention of the adjudicative body for review.

The motion is directed to the NAC, Review Subcommittee, Subcommittee, or Extended Proceeding Committee depending on which body is handling the specific aspect of the appellate proceeding in which the Counsel decision was made. This flexible direction of review motions ensures that parties can access the appropriate level of review without navigating a separate hierarchical review process for Counsel's administrative decisions.

Counsel to the NAC and the Separation of Functions Framework

The Counsel to the NAC role is carefully designed to navigate the separation of functions requirements of FINRA Rule 9144 while enabling effective advisory support for the NAC's appellate function. FINRA Rule 9144(a) prohibits Interested FINRA Staff — defined in FINRA Rule 9120(t) as enforcement and investigation personnel directly involved in the specific proceeding — from advising Adjudicators on their decisions. Counsel to the NAC is not Interested FINRA Staff — they are OGC attorneys whose role is exclusively advisory to the adjudicative body rather than prosecutorial in the underlying proceeding. This institutional distinction between OGC advisory attorneys serving as Counsel to the NAC and enforcement attorneys who prosecuted the case before OHO is fundamental to the legitimacy of the appellate process.

The FINRA Rule 9332 impartiality requirement reinforces this distinction — Counsel to the NAC must be free from conflicts of interest, bias, and circumstances where their fairness might reasonably be questioned, just as NAC members and Subcommittee panelists must be. An OGC attorney who previously worked on the specific enforcement case as a prosecution-side advisor cannot serve as Counsel to the NAC for that case's appeal — the same impartiality standards that govern adjudicators govern their counsel.

Connection to FINRA Rules 9120, 9144, 9321, 9332, 9341, and 9347

FINRA Rule 9313 connects to FINRA Rule 9120(d) — which defines Counsel to the NAC as an OGC attorney responsible for advising the NAC and its subcommittees on disciplinary proceedings on appeal. It connects to FINRA Rule 9144(a) — the separation of functions provision that the Counsel to the NAC role must carefully respect. It connects to FINRA Rule 9321 — the record transmission rule that Counsel can direct OHO to complete under FINRA Rule 9313(a)(1). It connects to FINRA Rule 9332 — which subjects Counsel to the same impartiality and disqualification requirements as NAC members and Subcommittee panelists. It connects to FINRA Rule 9341 — whose oral argument framework Counsel administers under FINRA Rule 9313(a)(4). And it connects to FINRA Rule 9347 — whose briefing schedule and filing requirements Counsel manages under FINRA Rules 9313(a)(2) and (3).

Examination Relevance and Key Takeaways

FINRA Rule 9313 is tested on the Series 24 General Securities Principal examination in the context of the NAC appellate framework, the institutional role of Counsel to the NAC, and the distinction between Counsel's advisory function and the adjudicative authority of the NAC itself.

The key points to retain are these: FINRA Rule 9313 defines Counsel to the NAC as an OGC attorney who advises the NAC, Review Subcommittee, Subcommittee, and Extended Proceeding Committee on disciplinary proceedings on appeal and administers the ministerial and administrative functions of those proceedings; Counsel to the NAC is neither an advocate for any party nor an adjudicator — the role is advisory and administrative, distinct from both the Department of Enforcement's prosecutorial function and the NAC's adjudicative function; FINRA Rule 9313(a) grants eight specific ministerial and administrative powers including directing OHO on record transmission, establishing and amending briefing schedules without shortening them absent party consent, permitting filing variations from the Rule 9130 Series requirements, scheduling oral argument, determining non-party attendance at hearings, ruling on time extension motions, requesting supplemental briefing on issues not previously raised, and establishing copy requirements; FINRA Rule 9313(b) provides parties with a motion right to seek review of any Counsel decision by the NAC, Review Subcommittee, Subcommittee, or Extended Proceeding Committee; Counsel to the NAC is subject to the same FINRA Rule 9332 impartiality and disqualification requirements as NAC members and Subcommittee panelists; the Counsel to the NAC role navigates the FINRA Rule 9144 separation of functions framework by maintaining clear institutional separation from the Department of Enforcement's prosecutorial function; and the rule was last amended March 9, 2012 through SR-FINRA-2012-007 conforming the copy requirement provision to FINRA Rule 9136.