As amended, Rules 12602 and 123602 of FINRA's 'Codes of Arbitration Procedures for Customers and Industry', respectively, would permit a non-party witness’ attorney to attend a hearing while his client testified, unless otherwise authorized by the arbitrators. 

• The change goes into effect next month, on 10/14.
• It limits the attorney’s role to asserting recognized privileges - e.g., the attorney-client and workproduct privileges, and the privilege against self-incrimination.  
• It will apply to all hearings taking place on or after 10/14/2010.

    Current Rules/Practices re: Testimony by a Non-Party Witness.   A non-party witness may testify at a hearing: (i) voluntarily;  (ii) pursuant to a subpoena; or, (iii) in compliance with an arbitrator’s order for an associated person to appear and give testimony.

e.g. - a customer claimant may not have named the broker who handled the customer’s account as a respondent in a case, but the broker may be called to testify at the FINRA arbitration hearing.  In such a case, if the broker wants to bring an attorney to the hearing, the Codes currently provide that the arbitrators will determine if the attorney may attend.

Generally, FINRA arbitrators permit non-party witnesses to bring their attorneys to the hearing while they are testifying.  During the hearing, the attorney’s participation usually involves the attorney making objections based on generally recognized privileges. 

    Why the Change.   To enhance the appearance of fairness in the arbitration process, FINRA is amending the rules, providing expressly that a non-party witness’ attorney may attend a hearing while the witness is testifying.  Unless otherwise authorized by the panel, the attorney’s role will be limited to the assertion of recognized privileges, such as the attorney-client and work-product privileges, and the privilege against self-incrimination.  The attorney must be in good standing and admitted to practice before the Supreme Court of the United States or the highest court of any state of the United States, the District of Columbia or any commonwealth, territory or possession of the United States, unless state law prohibits such representation.