804 C.M.R. 1.15 – Parties and Representatives

(1) Duty to Provide Contact Information. Parties and representatives are required to provide the Commission with contact information in the form of a current mailing address, email address, and telephone number, and shall update such information when there is a change to any such information. Parties and representatives are required to provide and update contact information in the MCAD Case Portal. A party that is allowed alternative means of case access pursuant to 804 CMR 1.15(15) shall provide and update contact information with the Commission in writing.
(2) Intervention. Any person or organization not originally a party to a complaint may move to intervene in a complaint, and shall be permitted to intervene, if, in the judgment of the Commission, after certification to public hearing, that person or organization has a material interest in the outcome of the complaint, and asserts a claim or defense which has common questions of law or fact with the complaint.
(3) Substitution, Joinder, or Amendment of Parties. The Commission may sua sponte, or upon motion of any party, make such substitution, joinder, or amendment of parties as justice or convenience may require. All parties shall be notified of any substitution, joinder or amendment.
(4) Consolidation. The Commission may sua sponte, or upon motion of a party, order complaints involving a common question of law or fact to be consolidated.
(5) Class Action.
1. (a) The Commission may grant permission or sua sponte determine that a case shall proceed as an authorized class action at any time after a probable cause determination pursuant to 804 CMR 1.08(1)(f)1. and prior to certification to public hearing pursuant to 804 CMR 1.11 if the following prerequisites are met:
  1. 1. The class is so numerous that joinder of all members is impracticable;
  2. 2. There are questions of law or fact common to the class;
  3. 3. The claims or defenses of the representative parties are typical of the claims or defenses of the class;
  4. 4. The representative parties shall fairly and adequately protect the interests of the class;
  5. 5. The public interest is served by a class proceeding; and
  6. 6. The parties are allowed an opportunity to submit briefs on the issue prior to a sua sponte determination.
2. (b) A class action shall be maintained if the prerequisites of 804 CMR 1.15(5) are met, and the Commission finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to the other available methods for the fair and efficient adjudication of the controversy.
3. (c) The Commission may require such review and impose such terms as shall fairly and adequately protect the interests of the class on whose behalf the complaint is brought or defended. Whenever the representative party appears to the Commission inadequate to fairly protect the interests of absent individuals who may be bound by any Commission order, the Commission may, at any time prior to entry of the order certifying the class, amend the complaint to eliminate any reference to representation of absent persons. The Commission shall enter an order in such form as to affect only the parties to the action and those adequately represented.
4. (d) Respondent(s) or any person whose rights may be affected by the resolution of an authorized class action may challenge the class nature of the complaint before or within ten days' notice of certification to public hearing pursuant to 804 CMR 1.11 through a motion submitted to the Commission for a hearing concerning the validity of the class. The respondent or person challenging the authorized class action shall have the burden of showing by a preponderance of the evidence that the proposed class fails to satisfy the requirements of 804 CMR 1.15(5).
5. (e) An authorized class action shall not be withdrawn or modified without the approval of the Commission.
6. (f) In any case brought as a class action, the Commission may, when appropriate, order that all remedies shall apply to member(s) of the class.
7. (g) A party may appeal an order by the Commission certifying a class action to the Full Commission.
(6) Counsel Required following Probable Cause. Following a probable cause determination pursuant to 804 CMR 1.08(1)(f)1. the case in support of the complaint shall be presented before the Commission by an attorney. Such attorney may either be a Commission attorney, or, at the discretion of the Commission, an attorney retained by the complainant. The determination whether to assign one of the Commission's attorneys to a pending matter shall be made at the discretion of the Commission in consideration of the public interest.
(7) Private Representation. A complainant may have a private attorney notwithstanding the assignment of one of the Commission's attorneys to a case, although in such case counsel for the Commission has exclusive authority to present the case in support of the complaint and represent the public interest.
(8) Attorney Withdrawal.
1. (a) Prior to a conciliation conference held pursuant to 804 CMR 1.09, an attorney may, without leave of the Commission, withdraw from a matter by filing a written notice of withdrawal together with proof of service on their client and all other parties.
2. (b) Following the conciliation conference held pursuant to 804 CMR 1.09, an attorney may, without leave of the Commission, withdraw from a matter by filing a written notice of withdrawal which includes an appearance of successor counsel. Absent an appearance of successor counsel, an attorney shall obtain leave of the Commission to withdraw from a case. In deciding whether to allow the withdrawal of an attorney, the Commission's considerations may include, but are not limited to, the public interest necessary to assign one of the Commission's attorneys and the impact of a withdrawal on the timely, fair and efficient adjudication of the case.
3. (c) Unless there is appearance by successor counsel, every notice of withdrawal or request to withdraw filed under 804 CMR 1.15(8)(a) or (b) shall include current contact information for the party for whom representation is being withdrawn, including home and business address, email address and telephone number(s).
4. (d) Leave to withdraw without successor counsel shall be conditioned upon counsel's cooperation in the transfer of the matter to the Commission including, but not limited to, providing the Commission with all discovery conducted prior to withdrawal.
(9) Attorney Signature.
1. (a) Every pleading, motion or document filed by a party represented by counsel shall be signed by counsel. The address of each attorney, telephone number, business email address, and bar registration number shall be stated.
2. (b) The signature of an attorney constitutes certification that the signer has read the pleading, motion, or document; that based on the signer's knowledge, information, and belief, it is grounded in fact and warranted by existing law or constitutes a good faith argument for the extension, modification, or revision of existing law; and is not interposed for any improper purpose, such as to harass or cause unnecessary delay or increase in the cost of the proceedings.
3. (c) Any pleading, motion, or document filed by counsel that is unsigned shall be stricken, unless it is signed promptly after the omission is brought to the attention of the attorney who filed the document.
4. (d) If a pleading, motion, or other document submitted to the Commission fails to comply with the requirements within 804 CMR 1.15(9), the Commission may impose sanctions in accordance with 804 CMR 1.22 upon the attorney, the represented party, or both, including an order to pay reasonable expenses and attorney's fees incurred by the opposing party or the Commission as a result of the noncompliant document.
(10) Enforcement by Private Counsel. The Commission may grant a request by complainant's counsel to be the designated agent of the Commission for purposes of enforcement of a settlement agreement, consent order, subpoena or final order of the Commission provided that the interest of the complainant and the interest of the Commission are not in conflict. Designation of private counsel as agent of the Commission for purposes of enforcement shall be made in writing.
(11) Attorney Notice of Appearance and Pro Hac Vice Notice. Any attorney representing a client in a complaint filed with the Commission shall be a member in good standing of the bar of the Commonwealth of Massachusetts and shall file a notice of appearance. The filing of a complaint on behalf of a client pursuant to 804 CMR 1.04(1) shall constitute a notice of appearance. If an attorney is not a member of the Massachusetts bar, in order to be admitted to represent a client pro hac vice, a motion for admission shall be filed in conformance with the following:
1. (a) The motion shall be signed and filed by a member in good standing of the Massachusetts bar on behalf of the attorney seeking admission pro hac vice.
2. (b) The motion shall be accompanied by an affidavit from the attorney signing the motion stating that the out of state attorney is a member of the bar in good standing in every jurisdiction where admitted to practice; there are no disciplinary proceedings pending; and the attorney is familiar with the Commission's regulations and the Massachusetts anti- discrimination laws.
(12) Limited Exception to Attorney Pro Hac Vice Admission. Pre-probable cause and during any appeal filed pursuant to 804 CMR 1.08(4)(b), an attorney who is a member in good standing of a state bar outside of Massachusetts may represent a party before the Commission without being admitted pro hac vice. After the issuance of a probable cause determination under 804 CMR 1.08(1)(f)1., an attorney who is not a member of the Massachusetts bar in good standing or admitted pro hac vice may not represent a party before the Commission.
(13) Appearance by a Duly Authorized Representative. Except for when a sanction issues pursuant to 804 CMR 1.22(2)(d), a party shall have exclusive control over whether a duly authorized representative appears on their behalf and a party may authorize or revoke such representation at any time. Any authorization or revocation shall be filed in writing by the party with the Commission. A duly authorized representative is not allowed to file a complaint through the MCAD Case Portal on behalf of a complainant but may assist a complainant in the drafting and preparation of a complaint through the MCAD Case Portal. After such complaint is filed, the complainant may formally authorize the duly authorized representative to act on their behalf.
(14) Scope of Duly Authorized Representation. In accordance with the prohibition against the practice of law by non-attorneys, duly authorized representatives are not allowed for any party after the issuance of a probable cause disposition.
(15) Use of the MCAD Case Portal after the Filing of the Complaint. Pro se parties and representatives are required to use the MCAD Case Portal for all filings, case access, and communication with the Commission after the filing of the complaint. Pro se parties may be excused from using the MCAD Case Portal if they demonstrate a compelling inability to access or use the MCAD Case Portal or have received reasonable accommodation due to a disability. Representatives may be excused from using the MCAD Case Portal if they have received reasonable accommodation due to a disability.