Alaska Bar. R. 30

As amended through November 12, 2024

Rule 30 - Procedure: Disabled, Incapacitated or Incompetent Attorney

(a) Immediate Transfer to Interim Disability Inactive Status. The Court will immediately transfer an attorney to interim disability inactive status upon a showing that

(1) the attorney has been declared incompetent by judicial order;

(2) the attorney has been involuntarily committed to an institution because of incapacity or disability; or

(3) the attorney has alleged during a disciplinary proceeding that he or she is incapable of assisting in his or her defense due to mental or physical incapacity.

The period of interim disability inactive status will continue until further order of the Court. A copy of the order will be served upon the attorney so transferred, his or her guardian, or the director of the institution to which (s)he has been committed or in a manner that the Court may direct. The order of transfer to interim disability inactive status will be in effect pending final disposition of a disability hearing proceeding. The hearing will be commenced upon the transfer to interim disability inactive status, and will be conducted in accordance with Section (b) of this Rule. The transfer to interim disability inactive status will terminate upon the final disposition of the disability proceedings, or upon the earlier entry of an order by the Court terminating interim disability inactive status. An attorney transferred to interim disability inactive status may petition the Court for a return to active status upon the filing of documentation demonstrating that the attorney has been judicially declared competent. The reinstatement will not terminate any formal disability proceeding then pending against the attorney.

(b) Transfer to Disability Inactive Status Following Hearing. The Court may transfer an attorney to disability inactive status upon a showing that the attorney is unable to continue the practice of law by reason of mental or physical infirmity or illness, or because of addiction to controlled substances. Hearings will be initiated by Bar Counsel and conducted in the same manner as disciplinary proceedings under Rule 22, except that all proceedings will be confidential. Upon petition of Bar Counsel for good cause shown, the Court may order the Respondent to submit to a medical and/or psychological examination by a Court-appointed expert.

(c) Stay and Appointment of Counsel. The Court may appoint counsel to represent the attorney in a disability proceeding if it appears to the Court that the attorney is unable to obtain counsel or represent himself or herself effectively, due to incapacity. Any pending disciplinary proceedings against the attorney may, at the discretion of the Board, be stayed pending the removal or cessation of the disability.

(d) Hearing Committee and Board Duties and Obligations. The Hearing Committee will recommend to the Board whether the attorney is unable to continue the practice of law because of the reasons set out in Section (b) of this Rule, and whether the reasons justify the transfer of the attorney to inactive status. The Board will make recommendations to the Court as to whether the alleged incapacity justifies transfer to disability inactive status.

(e) Notice to Public of Transfer to Disability Inactive Status. The Board will cause a notice of transfer to disability inactive status, whether imposed after hearing or on an interim basis, to be published in

(1) an official Alaska Bar Association publication and on the Alaska Bar Association's website; and

(2) a newspaper of general circulation primarily serving the community in which the disabled attorney maintained his or her practice.

When the disability or incapacity is removed and the attorney has been restored to active status, the Board will cause a notice of transfer to active status to be similarly published.

(f) Circulation of Notice Transferring to Inactive Status. The Board will promptly transmit a copy of the order of transfer to interim disability inactive status or disability inactive status to the presiding judge of the superior and district court in each judicial district in the state; to the presiding judge of the United States District Court for the District of Alaska; and to the Attorney General for the State of Alaska, together with the request that the Attorney General notify the appropriate administrative agencies. The Board will request action under Rule 31, as may be necessary, in order to protect the interests of the disabled attorney and his or her clients.

Bar Counsel will transmit to the National Lawyer Regulatory Bank maintained by the American Bar Association, and any jurisdiction to which Respondent has been admitted, notice of all transfers to inactive status due to disability and all orders granting reinstatement.

(g) Reinstatement. No attorney transferred to disability inactive status under the provisions of this Rule may resume active or inactive status until reinstated by order of the Court. Any attorney transferred to disability inactive status under the provisions of this Rule will be entitled to apply for reinstatement to active or inactive status once a year, but initially not before one year from the date of the Court order transferring him or her to disability inactive status, or at such shorter intervals as the Court may direct in the order transferring the Respondent to inactive status or any modification thereto.

The attorney seeking transfer from disability inactive status shall file a verified application for reinstatement with the Court, with a copy served upon the Director. In the application, the attorney will

(1) state that (s)he has met the terms and conditions of the order transferring him or her to disability inactive status;

(2) state the names and addresses of all his or her employers during the period of disability inactive status;

(3) describe the scope and content of the work performed by the attorney for each such employer;

(4) provide the names and addresses of at least three character witnesses who have knowledge concerning the activities of the attorney during the period of disability inactive status;

(5) provide the names and addresses of all health care providers, hospitals, and other institutions by whom or in which the attorney has been examined or treated since his or her transfer to disability inactive status;

(6) state that the disability or incapacitating condition has been removed and attach the expert opinion of a physician, psychiatrist or psychologist that the disability or incapacity has been removed;

(7) state whether any of the incidents listed in Rule 2(1)(d)(1)-(10) have occurred during the period of disability inactive status;

Upon receipt of the application for reinstatement, the Director will refer the application to a Hearing Committee in the jurisdiction in which the attorney maintained an office at the time of his or her transfer to disability inactive status; the Hearing Committee will promptly schedule a hearing; at the hearing, the attorney will have the burden of demonstrating that the attorney's disability has been removed and (s)he meets the standards of character and fitness contained in Rule 2(1)(d); within 30 days of the conclusion of the hearing, the Hearing Committee will issue a report setting forth its findings of fact, conclusions of law, and recommendation; the Committee will serve a copy of the report upon the attorney and Bar Counsel, and transmit it, together with the record of the hearing, to the Board; any appellate action will be subject to the appellate procedures set forth in Rule 25.

At its next scheduled meeting at least 30 days after receipt of the Hearing Committee's report, the Board will review the report and the record; the Board will file its findings of fact, conclusions of law, and recommendation with the Court, together with the record and the Hearing Committee report; the application will be placed upon the calendar of the Court for acceptance or rejection of the Board's recommendation.

In all proceedings concerning an application for reinstatement from disability inactive status, Bar Counsel may cross-examine the attorney's witnesses and submit evidence in opposition to the application.

The application will be granted by the Court upon a showing that the attorney's disability has been removed and (s)he is fit to resume the practice of law. Upon application, the Court may take or direct any action it deems necessary to determine whether the attorney's disability or incapacity has been removed, including an order for an examination of the attorney by qualified medical and/or psychological experts that the Court may designate. In its discretion, the Court may order that the expense of the examination be paid by the attorney. In addition, the Court may direct that the necessary expenses incurred in the investigation and processing of any application for reinstatement from disability inactive status be paid by the attorney.

Prior to reinstatement, the attorney must pay to the Bar, in cash or by certified check, the full active membership fees due and owing the Association for the year in which (s)he is reinstated.

(h) Burden of Proof. In a proceeding seeking transfer of an attorney to disability inactive status under this Rule, Bar Counsel will have the burden of proving, by clear and convincing evidence, that the attorney should be so transferred. In a proceeding seeking an order of reinstatement to active status under this Rule, the same burden of proof will rest with the attorney.

(i) Waiver of Physician and Psychotherapist-Patient Privilege. The filing of an application for reinstatement by an attorney transferred to disability inactive status because of disability or incapacity will be deemed to constitute a waiver of any physician and psychotherapist-patient privilege with respect to any treatment of the attorney during the period of his or her disability. The disabled attorney will be required to disclose the name of every health care provider and hospital or other institution by whom or in which the attorney has been examined or treated since his or her transfer to disability inactive status. (S)he will furnish to the Court written consent for each person or organization to divulge information and records as requested by court-appointed medical experts.

Alaska Bar. R. 30

Added by SCO 176 dated February 26, 1974; rescinded and repromulgated by SCO 614 effective 1/1/1985; amended by SCO 962 effective 7/15/1989; by SCO 1336 effective 1/15/1999; by SCO 1438 effective 10/15/2001; and by SCO 1519 effective 10/15/2004; amended by SCO 1966 effective 8/2/2021.