When a committee authorizes charges of professional misconduct against a respondent, the chief attorney shall file in the Appellate Division an original notice of petition and verified petition, together with five copies thereof with proof of service of one copy on the respondent. Unless otherwise directed by the Appellate Division, the proceeding shall be made returnable at 2:00 p.m. on the last Tuesday of a scheduled term of the court. The notice of petition and petition shall be served in the manner set forth in Judiciary Law, section 90(6), and with sufficient notice to all parties, as set forth in the CPLR, and shall be filed at least 30 days prior to the return date thereof.

The respondent shall file in the Appellate Division an original verified answer to a petition, together with five copies thereof with proof of service of one copy on the chief attorney or staff counsel, within 20 days from the date of service of the petition. The respondent in the answer shall respond to each allegation of the petition by either admitting the allegation, denying the allegation as known or believed by the respondent to be untrue, or specifying that the respondent lacks knowledge or information sufficient to form a belief as to the truth of the allegation, which shall have the effect of a denial. The respondent in the answer shall additionally plead any affirmative defense to the charges, and may also set forth matters in mitigation.

In the event a respondent fails to file an answer within the time period specified under these rules, the chief attorney may file in the Appellate Division a motion for an order finding the respondent in default, deeming the material allegations of the petition admitted by the respondent, and granting any other relief provided by law and warranted under the circumstances, which may include an order suspending the respondent during the pendency of the proceeding, pursuant to section 1240.9 of this Title. Unless otherwise directed by the court, any motion for an order finding the respondent in default shall be filed in accordance with subdivision (h) of this section and include proof that a copy of the motion papers were delivered personally to the respondent at least 10 days prior to the return date of the motion. The respondent shall personally appear before the Appellate Division on the return date of any such motion.

When one or more parties to the proceeding files a statement of disputed facts, pursuant to section 1240.8(a)(2) of this Title, which in the discretion of the court establishes the existence of an issue of fact for which a hearing is necessary, the court may refer the matter to a justice of the Supreme Court or referee designated by the Appellate Division for a hearing on such issue. The referee may additionally receive evidence regarding any disputed aggravating factor raised in the petition or defense or mitigating factor raised in the answer. The referee shall thereafter file with the Appellate Division a written report setting forth findings of fact with respect to all issues of fact and making an advisory determination as to whether the committee has established, by a preponderance of the evidence, each element of the charge or charges of misconduct. The referee shall not make a recommendation as to an appropriate sanction. Unless otherwise directed by the Appellate Division, the referee shall give the matter a preference, shall schedule the hearing on consecutive dates, to the extent possible, and shall complete the hearing within 60 days following the date of the entry of the order of reference. The parties shall make final submissions to the referee, including proposed findings of fact, if any, within 15 days following the date on which the stenographic transcript of the minutes of the hearing is completed and provided to the parties, and the referee's report shall be completed within 30 days after final submissions are made by the parties.

Unless otherwise directed by the court, an application by any party for a subpoena seeking the attendance of a witness or the production of books and papers before the court or a referee appointed by the court, pursuant to section 1240.8(a)(4) of this Title, shall not be made until after the entry of an order of the Appellate Division referring the matter for a hearing. The application shall be supported by an affirmation setting forth facts sufficient to demonstrate that the testimony or books and papers specified therein are relevant to a disputed fact in the matter and that a judicial subpoena is necessary to obtain such testimony or books and papers. The application shall also be on notice to all parties to the proceeding, and the court may direct such further notice as justice may require. The court may refer the application for consideration and recommendation or determination by the referee.

When no issue of fact is raised by the pleadings, or after completion of the hearing and report on issues of fact, the court shall fix a time at which the respondent may be heard in mitigation or otherwise, unless the respondent waives in writing the privilege to be heard.

Unless otherwise directed by the court, the respondent may file with the court written materials setting forth matters in mitigation at any time up until 20 days before any date fixed by the court for the respondent to be heard in mitigation.