Ariz. R. Sup. Ct. 63

As amended through August 22, 2024

Rule 63 - Transfer to Disability Inactive Status

(a)Purpose. A lawyer or legal paraprofessional whose physical or mental condition adversely affects the lawyer's or legal paraprofessional's ability to practice law shall be investigated, and where warranted, shall be the subject of formal proceedings to determine whether the lawyer or legal paraprofessional shall be transferred to disability inactive status. Transfer to disability inactive status is not a form of discipline but is designed to ensure the protection of the public and rehabilitation of the lawyer. Orders of transfer may include conditions of conduct in the nature of probation, and consent orders shall be encouraged.

(b)Method of Transfer

1.Judicial Determinations of Incapacity. If a lawyer or legal paraprofessional has been judicially declared incompetent, incompetent to stand trial, or is voluntarily or involuntarily committed on the grounds of incompetency or other disability or incapacity in a court proceeding, the presiding disciplinary judge, upon motion of bar counsel and proper proof of the fact, shall enter an order of transfer immediately transferring the lawyer or legal paraprofessional to disability inactive status for an indefinite period until further order. A copy of the order shall be personally served upon the clerk of the court, the lawyer or legal paraprofessional, the lawyer's or legal paraprofessional's guardian and conservator, and the director of the institution to which the lawyer or legal paraprofessional may have been committed.

2.Interim Order of incapacity. When it appears to the state bar, the committee, the presiding disciplinary judge, or the hearing panel that a lawyer or legal paraprofessional may be incapacitated to the extent that the lawyer or legal paraprofessional may be causing harm to the public, the legal profession or the administration of justice by reason of a mental or physical condition or because of addiction to drugs or intoxicants, bar counsel may file a motion, setting forth facts to support a prima facie finding of incapacity and accompanied by verification or affidavit, with the disciplinary clerk, for an order temporarily transferring the lawyer or legal paraprofessional to disability inactive status pending a hearing to determine incapacity as provided in this rule.

3.Finding of Incapacity to Discharge Duty. If it is alleged by a lawyer or legal paraprofessional or otherwise appears in the course of a discipline proceeding that the lawyer or legal paraprofessional is incapacitated or impaired by reason of a mental or physical condition or because of addiction to drugs or intoxicants, and the lawyer or legal paraprofessional lacks the capacity to adequately discharge the lawyer's or legal paraprofessional's duty to clients, the bar, the courts or the public, a petition may be filed with the disciplinary clerk by bar counsel, on bar counsel's own initiative or upon a recommendation of the committee, the presiding disciplinary judge, or the lawyer or legal paraprofessional alleged to be incapacitated

4.Finding of Incompetency to Assist in Defense. If it is alleged by a lawyer or legal paraprofessional or otherwise appears in the course of a discipline or disability proceeding that the lawyer is unable to understand the proceedings or assist in the lawyer's or legal paraprofessional's defense as a result of a mental or physical condition, the presiding disciplinary judge, sua sponte, or upon motion of bar counsel, shall immediately transfer the lawyer or legal paraprofessional to disability inactive status on a temporary basis pending a determination of competency, and all pending discipline proceedings shall be temporarily stayed. When a lawyer files a petition requesting transfer to disability inactive status alleging incompetence to assist in the lawyer's or legal paraprofessional's defense, the petition shall be processed according to paragraph (c) of this rule.

5.By consent Agreement. An agreement for transfer to disability inactive status must be signed by the lawyer or legal paraprofessional, the lawyer's or legal paraprofessional's counsel, if any, and bar counsel.

A. General Language. Agreements must include the following language as applicable:

(i) a statement describing the nature and extent of the lawyer's or legal paraprofessional's physical or mental condition that adversely affects his or her ability to practice law warranting transfer to disability inactive status;

(ii) a statement that the order of transfer to disability inactive status may include conditions of conduct in the nature of probation;

(iii) a statement that the lawyer's or legal paraprofessional's consent to be transferred to disability inactive status is submitted freely and voluntarily and not as a result of coercion or intimidation;

(iv) a statement that the lawyer or legal paraprofessional is represented by counsel, has chosen not to seek the assistance of counsel or is unable to secure representation by counsel;

(v) a statement that the lawyer or legal paraprofessional voluntarily waives the right to an adjudicatory hearing on the transfer, unless otherwise ordered, and waives all motions, defenses, objections, or requests which have been made or raised, or could be asserted thereafter, if the transfer is approved;

(vi) a statement that the lawyer or legal paraprofessional acknowledges the duty to comply with all rules pertaining to notification of clients, return of property, and other rules pertaining to suspension, including reinstatement;

(vii) a statement that outlines the possible consequences of any violation of the conditions of conduct that are being imposed in the nature of probation or any other provision of the agreement;

(viii) a statement that the agreement has been approved as to form and content by the chief bar counsel or chief bar counsel's designee; and

(ix) a statement that any complainant has been informed of the consent for transfer to disability inactive status and that a copy of the complainant's objection, if any, has been provided to the presiding disciplinary judge.

B. Evaluations. The parties may attach to the consent agreement copies of relevant and recent medical, psychiatric or psychological evaluations, if appropriate.

C. Hearing. At the discretion of the presiding disciplinary judge, or upon request of either party, a hearing may be held before the presiding disciplinary judge for the purpose of addressing a consent agreement to transfer to disability inactive status.

(c)Proceedings to Determine Incapacity or Competence.

1.Petition. A petition requesting transfer to disability inactive status may be filed with the disciplinary clerk by bar counsel, on bar counsel's own initiative or upon a recommendation of the committee, the presiding disciplinary judge, or the lawyer or legal paraprofessional alleged to be incapacitated. The petition shall be accompanied by affidavits, reports, or other documentation to support a prima facie finding of incapacity.

2.Service. Within seven (7) days of the filing of the petition, petitioner shall personally serve the petition and accompanying documentation on the parties and will provide notice of service to the disciplinary clerk. A response may be filed within ten (10) days of service of the petition. The presiding disciplinary judge shall hold a hearing within ninety (90) days of the filing of the response or the time for filing the response. The presiding disciplinary judge may continue the hearing if additional time is needed to obtain necessary evaluations and reports and may enter an interim order of incapacity, as set forth in subsection (b)(2) of this rule, pending the hearing upon stipulation of the parties.

3.Appointment of Counsel. The presiding disciplinary judge may appoint counsel to represent the lawyer or legal paraprofessional alleged to be incapacitated if the lawyer or legal paraprofessional is without adequate representation and the presiding disciplinary judge determines there is prima facie evidence of incapacity. The presiding disciplinary judge shall appoint counsel to represent a lawyer or legal paraprofessional who is without representation in proceedings to determine competency.

4.Hearing.

A. Incapacity to Discharge Duty. The presiding disciplinary judge may take or direct whatever action deemed necessary or proper to determine whether the lawyer or legal paraprofessional is incapacitated, including directing examination of the lawyer or legal paraprofessional by qualified experts designated by the presiding disciplinary judge at the expense of the state bar. The petitioner shall have the burden of proving by clear and convincing evidence, which shall include a relevant and recent medical, psychiatric or psychological evaluation, that, as a result of a mental or physical condition, the lawyer or legal paraprofessional lacks the capacity to adequately discharge the lawyer's or legal paraprofessional's duty to clients, the bar, the courts or the public.

B. Competency to Assist in Defense. The presiding disciplinary judge may take or direct whatever action deemed necessary or proper to determine whether the lawyer or legal paraprofessional is competent, including directing examination of the lawyer by qualified experts. Upon the filing of a disability petition, the state bar may also direct a lawyer to submit to an independent medical or mental evaluation by a qualified expert chosen by the state bar. The mere presence of a mental illness, defect, or disability or physical incapacity is not grounds for finding a lawyer incompetent. The only issue to be determined is whether the lawyer or legal paraprofessional is able to assist in the lawyer's or legal paraprofessional's own defense. To assist in the lawyer's or legal paraprofessional's own defense, the lawyer or legal paraprofessional needs to understand the charges, be able to communicate with the lawyer's or legal paraprofessional's attorney about the charges and any defense to those charges, and be able to testify about relevant conduct in the disciplinary proceeding. The expense for the evaluation shall be paid by the petitioner, unless otherwise ordered by the presiding disciplinary judge.

5.Report of presiding disciplinary judge. Within thirty (30) days after the hearing or the filing of the post-hearing memoranda or stipulation, the presiding disciplinary judge shall prepare and file with the disciplinary clerk a decision and order containing findings of fact and conclusions concerning transfer to disability inactive status based on a determination of incapacity to discharge duty or competency to assist in defense. The presiding disciplinary judge shall also serve a copy of the report and the order transferring the lawyer or legal paraprofessional to disability inactive status on the parties. Thereafter, the lawyer or legal paraprofessional shall be transferred to disability inactive status subject to a right to appeal. If a party does not appeal the order of transfer, the presiding disciplinary judge shall notify the court of same by memorandum, and the decision shall be final.

6.Appeal. Except in cases resolved by consent agreement under (b)(5), either party may appeal the presiding disciplinary judge's decision and order regarding transfer of a lawyer to disability inactive status as provided in Rule 59.

(d)Status of Pending Disciplinary Proceedings.

1.Incapacity to Discharge Duty. An order transferring a lawyer or legal paraprofessional to disability inactive status based on a finding that a lawyer or legal paraprofessional is unable to discharge his or her duties to clients, the bar, the courts or the public does not affect any pending disciplinary proceedings, which shall continue, or if previously stayed, shall resume. Upon a showing of good cause, however, the presiding disciplinary judge or the court may order that all pending discipline proceedings be stayed. If pending discipline cases are stayed, any investigation may continue and testimony may be taken and other evidence preserved pending further proceedings. If information comes to the attention of bar counsel that good cause no longer supports the stay, the stay may be reviewed according to the procedure set forth for an order to show cause in paragraph (d)(3) of this rule.

2.Competency to Assist in Defense. If the presiding disciplinary judge or this court determines a lawyer or legal paraprofessional is not competent to assist in the lawyer's or legal paraprofessional's own defense, discipline proceedings shall be stayed, and the lawyer or legal paraprofessional placed or retained on disability inactive status until an application for transfer to active status is filed and subsequently granted. If, after the filing of a petition for order to show cause pursuant to paragraph (d)(3) of this rule, a decision that the lawyer is competent to assist in the lawyer's or legal paraprofessional's own defense becomes final, the temporary order of transfer to disability status shall be vacated by the presiding disciplinary judge or the court and the discipline proceedings shall resume.

3.Order to Show Cause.

A. Petition. In the case of a lawyer or legal paraprofessional who has been transferred to disability inactive status, if information comes to the attention of the state bar indicating that good cause no longer exists to maintain a stay imposed pursuant to paragraph (d)(1) of this rule, or that the lawyer or legal paraprofessional appears no longer to be incompetent and a stay imposed pursuant to paragraph (d)(2) of this rule is no longer appropriate, bar counsel shall file with the disciplinary clerk a petition for order to show cause.

B. Hearing. The presiding disciplinary judge shall issue an order requiring the lawyer or legal paraprofessional to show cause why an existing stay of pending discipline proceedings imposed upon a showing of good cause or upon a finding of incompetency should not be lifted. The only issue to be addressed at the hearing is whether such a stay should be lifted.

C. Decision and Order of presiding disciplinary judge. The presiding disciplinary judge shall, as soon as practicable, prepare and file with the disciplinary clerk a decision containing findings of fact and an order concerning whether the stay should be lifted. The presiding disciplinary judge shall also serve a copy of the decision and order on the parties. Any such order is subject to appellate review by the court. If an order is entered finding that an existing stay is no longer supported by good cause, or if an order is entered finding that a lawyer or legal paraprofessional is no longer incompetent, and if the time to appeal has expired, any stayed discipline proceedings shall resume.

D. Appeal and Review. Appeal from the presiding disciplinary judge's order shall be as set forth in paragraphs (c)(6) of this rule. If the court accepts the presiding disciplinary judge's finding that an existing stay is no longer supported by good cause or that a lawyer or legal paraprofessional is no longer incompetent, any stayed discipline proceedings shall resume.

(e)Confidentiality of Disability Proceedings. Proceedings and records relating to transfer to or from disability inactive status, including determinations of competency, are confidential, except that orders transferring a lawyer or legal paraprofessional to or from disability inactive status are public.

(f)Assessment of Costs. Costs and expenses of disability proceedings shall be determined, assessed, and enforced, at the discretion of the presiding disciplinary judge or the court, as provided for in Rule 60(b).

(g)Reinstatement to Active Status.

1.Application. An application for transfer from disability inactive status to active status shall be made pursuant to Rule 65 and will proceed as in other cases of reinstatement, except as may be provided in this rule. The application shall set forth the information required in other cases of reinstatement so far as applicable, and a brief statement of the facts and circumstances surrounding the transfer of applicant to disability inactive status.

2.Waiver of Doctor-Patient Privilege. The filing of an application for transfer to active status by a lawyer or legal paraprofessional transferred to disability inactive status shall constitute a waiver of any doctor-patient privilege with respect to any treatment of the lawyer or legal paraprofessional during the period of disability. The lawyer or legal paraprofessional shall be required to disclose the name of each psychiatrist, psychologist, physician or other health care provider, and hospital or other institution by whom or in which the lawyer or legal paraprofessional has been examined or treated since the lawyer's or legal paraprofessional's transfer to disability inactive status. The lawyer or legal paraprofessional shall furnish to the presiding disciplinary judge or this court written authorization to each health care provider and facility to release information and records relating to the disability if requested by the presiding disciplinary judge, this court or appointed medical experts.

3.Reinstatement. No lawyer or legal paraprofessional transferred to disability inactive status may resume active status until reinstated by order of this court. A lawyer or legal paraprofessional shall be entitled to apply for transfer to active status at any time at least one year after the lawyer's last application or at such shorter intervals as the court or the presiding disciplinary judge may direct in the order transferring the lawyer to disability inactive status or any modification thereof. The application shall be granted upon a showing, by clear and convincing evidence, that the lawyer's or legal paraprofessional's mental or physical condition has been removed and the lawyer or legal paraprofessional is fit to resume the practice of law. In its discretion, the hearing panel or the court may direct that the lawyer or legal paraprofessional establish proof of competence and learning in law, which proof may include certification by the bar examiners of the lawyer's or legal paraprofessional's successful completion of an examination for admission to practice, notwithstanding the lawyer or legal paraprofessional was on inactive status less than five years. If a lawyer or legal paraprofessional has been transferred to disability inactive status by an order in accordance with these rules and, thereafter, has been judicially declared to be no longer under disability, the hearing panel may dispense with further evidence that the disability has been removed and may recommend the lawyer's or legal paraprofessional's reinstatement to active status upon such terms as are deemed appropriate.

4.Pending Discipline. If the court, upon considering the application for transfer to active status, determines the application shall be granted, it shall also reinstate any stayed discipline proceedings.

Ariz. R. Sup. Ct. 63

Added June 9, 2003, effective 12/1/2003. Amended Sept. 27, 2005, effective 12/1/2005; 6/30/2010, effective 1/1/2011; 9/2/2014, effective 1/1/2015; 9/2/2016, effective 1/1/2017; amended effective 1/1/2019; amended Aug. 27, 2020, effective 1/1/2021.

HISTORICAL NOTES

Source:

ABA Model Rule 21.

Former Rule 42(e).

Former Rule 59.

Former Rule 63, which related to notice to clients. adverse parties and other counsel, was amended April 2, 1986, effective June 1, 1986; Jan. 26, 1994, effective June 1, 1994, and was abrogated by order dated June 9, 2003, effective Dec. 1, 2003.