803 C.M.R. 1.09 – Representation at Classification Hearing

(1) Notification. Pursuant to M.G.L. c. 6, § 178L(1)(a), the Board shall notify the sex offender that at the classification hearing the sex offender has the right to represent themselves; the right to retain private counsel to represent the sex offender at their hearing; the right to have an authorized representative, other than an attorney, represent them at the hearing; and the right to have counsel appointed for them if they are found indigent, as determined by the Board pursuant to M.G.L. c. 211D.
(2) Right to Counsel if Indigent. At the same time the Board provides notice pursuant to 803 CMR 1.09(1), the Board shall also provide the sex offender with the requisite forms to be completed if the sex offender claims to be indigent and requests the appointment of counsel. All forms must be completed and mailed to the Board within 20 calendar days of receipt.
1. a. If the Board has determined that the sex offender is indigent and thus entitled to the appointment of counsel pursuant to M.G.L. c. 211D, the sex offender and Committee for Public Counsel Services shall be notified in writing that they have satisfied the requirements to have an attorney represent them at the hearing. The Board shall review indigency every six months or when requested by the sex offender to ensure the sex offender is still entitled to counsel.
2. b. If the Board has determined that the sex offender is not entitled to the appointment of counsel pursuant to M.G.L. c. 211D, the sex offender shall be notified in writing that the sex offender will not have an attorney appointed to represent them. The sex offender shall further be notified that they may retain private counsel; that they may have an authorized representative; or they may represent themselves at the hearing.
(3) Juvenile Offenders. All sex offenders who are juveniles at the time of notification of the hearing shall be represented by counsel at the hearing. Any offender who is a juvenile at the time of the notification and who has not retained counsel is entitled to appointment of counsel.
(4) Notice of Appearance. A written notice of appearance must be submitted to the Board at least ten calendar days prior to the scheduled hearing date. The notice must include the name, address, telephone number, Board of Bar Overseers number, if applicable, and signature of the authorized representative, as well as the name and sex offender number of the offender the authorized representative will be representing. If the authorized representative is not an attorney, the authorized representative shall also submit a written authorization signed and dated by the sex offender.
(5) Self-representation. The sex offender may represent themselves at the hearing. The hearing examiner shall require the offender to sign a statement, or affirm under oath in the case of video-conference hearings, that the sex offender has been informed of their right to have representation and that they have knowingly and voluntarily waived that right. The sex offender representing themselves shall be placed under oath by the hearing examiner at the beginning of the hearing.
(6) Notice of Withdrawal. If an authorized representative is no longer representing the sex offender, the authorized representative must file a written notice of withdrawal with the Board. An authorized representative who is an attorney shall not be permitted to withdraw their appearance on the day of the scheduled hearing unless successor counsel is present and prepared to proceed with the hearing or the offender is prepared to proceed by representing themselves, or another authorized representative is present and prepared to proceed with the hearing.
(7) An authorized representative may not testify as a witness at the hearing.
(8) The Board may have a staff person or an attorney represent it at the hearing. These individuals shall have the status of a party.