Rule 243.6 - Transfer to Disability Inactive Status(a) Procedure and Determination. (1) Petition Filed by Regulation Counsel. (A) Petition. If the Regulation Counsel has reason to believe that a lawyer is disabled, the Regulation Counsel may file a petition with the Presiding Disciplinary Judge alleging that the lawyer is disabled and requesting an order requiring the lawyer to undergo an independent medical examination or an order transferring the lawyer to disability inactive status. The Regulation Counsel must promptly serve on the lawyer a copy of the petition and file with the Presiding Disciplinary Judge proof of service.(B) Show Cause Order. Unless the Regulation Counsel files an affidavit setting forth facts that clearly and convincingly show the lawyer is unable to respond, the Presiding Disciplinary Judge must afford the lawyer an opportunity to show cause in writing why the requested relief should not be granted.(C) Determination. After considering the lawyer's response, the Presiding Disciplinary Judge may issue appropriate orders, such as ordering an independent medical examination of the lawyer by a qualified examiner designated by the Presiding Disciplinary Judge. If the Presiding Disciplinary Judge finds clear and convincing evidence that the lawyer is disabled, the Presiding Disciplinary Judge will transfer the lawyer to disability inactive status.(2) Petition Premised on Reciprocal Disability.(A) Duty to Notify. A lawyer who is transferred to disability inactive status in another jurisdiction must promptly inform the Regulation Counsel of the transfer.(B) Petition. On learning that a lawyer has been transferred to disability inactive status in another jurisdiction, the Regulation Counsel may file with the Presiding Disciplinary Judge a certified copy of the order, accompanied by a petition for the lawyer's transfer to disability inactive status. The Regulation Counsel must promptly serve on the lawyer a copy of the petition and file with the Presiding Disciplinary Judge proof of service.(C) Show Cause Order. Unless the Regulation Counsel files an affidavit setting forth facts that clearly and convincingly show the lawyer is unable to respond, the Presiding Disciplinary Judge must afford the lawyer an opportunity to show cause in writing why reciprocal transfer to disability inactive status should not be ordered.(D) Answer. To contest transfer to disability inactive status, the lawyer must file with the Presiding Disciplinary Judge an answer asserting at least one of the defenses in subsection (E) below and a full copy of the record of the disability proceeding in the other jurisdiction.(E) Determination. The Presiding Disciplinary Judge will order the lawyer's transfer to disability inactive status unless the lawyer demonstrates by clear and convincing evidence that (i) the procedure followed in the other jurisdiction did not comport with Colorado's requirements of due process of law; (ii) the reason for the original transfer to disability inactive status no longer exists; or (iii) the proof upon which the other jurisdiction based its determination of disability is so infirm that the determination of the other jurisdiction cannot be accepted. In all other respects, a final adjudication in another jurisdiction that a lawyer, whether or not admitted in that jurisdiction, should be transferred to disability inactive status conclusively establishes the disability for purposes of this rule.(3) Petition Premised on Order of Commitment, Guardianship, or Judicial Declaration of Incompetence. On learning that a lawyer is subject to a valid and current order of commitment, is under guardianship, or is subject to a judicial declaration of incompetence to stand trial, the Regulation Counsel may file with the Presiding Disciplinary Judge a petition seeking the lawyer's transfer to disability inactive status, accompanied by proof of the basis for the petition. On receiving a properly supported petition, the Presiding Disciplinary Judge may transfer the lawyer to disability inactive status. The Presiding Disciplinary Judge must send notice of the transfer to the lawyer or, where applicable, to the lawyer's guardian or the director of the facility to which the lawyer has been committed.(4) Verified Notice Filed By Lawyer. If a lawyer believes that she or he is disabled, the lawyer must, if able, file with the Presiding Disciplinary Judge a verified notice setting forth the basis for the assertion of disability accompanied by proof thereof. On receiving a properly supported notice, the Presiding Disciplinary Judge will transfer the lawyer to disability inactive status.(5) Allegation of Inability to Defend. After an allegation of inability to defend a disciplinary proceeding has been raised under C.R.C.P. 243.7, the Presiding Disciplinary Judge may transfer a respondent to disability inactive status either: (A) If the respondent has raised the issue of disability as provided in C.R.C.P. 243.7(d)(1); or(B) If, subject to the procedures in C.R.C.P. 243.7(f), clear and convincing evidence shows that the respondent is disabled within the meaning of C.R.C.P. 243.4(a).(b) Service of Process. When a petition is filed under this rule, a lawyer may be served with process by personal service; by mail or email using the information provided by the lawyer under C.R.C.P. 227; by mail to any other address the lawyer has provided to the Regulation Counsel; or, if the lawyer is not admitted in Colorado, by mail or email to the lawyer's address of registration in any jurisdiction where the lawyer's registration is active. Service is deemed effective on the date that the lawyer is personally served, that the petition is placed in the mail, or that the email is sent.(c) Hearings. Either party may request a hearing on the issue of whether the lawyer should be transferred to disability inactive status. The Presiding Disciplinary Judge also has discretion to hold a hearing to address any issue in a disability proceeding. The clerk of the Presiding Disciplinary Judge may issue subpoenas under C.R.C.P. 45. Disability hearings are conducted by the Presiding Disciplinary Judge, sitting without a Hearing Board. Except as otherwise provided in this rule, disability proceedings must be conducted in accordance with the Colorado Rules of Civil Procedure and civil trial practice in this state. The Presiding Disciplinary Judge may receive any evidence with probative value regardless of its admissibility under the rules of evidence if the lawyer has a fair opportunity to rebut hearsay evidence.(d) Privilege Against Self-Incrimination and Adverse Inferences. A lawyer cannot be required to testify or to produce records over the lawyer's objection if doing so would violate the lawyer's constitutional privilege against self-incrimination. But in proceedings under this rule, the Presiding Disciplinary Judge may draw an adverse inference from a lawyer's failure to testify or to produce records. The Presiding Disciplinary Judge may also draw an adverse inference from a lawyer's disregard of orders issued in a disability proceeding.(e) Confidentiality. An order transferring a lawyer to disability inactive status is available to the public. Otherwise, disability proceedings, files, and records are confidential and are not available to the public, except by order of the supreme court or the Presiding Disciplinary Judge. All entities described in this rule and all individuals working or volunteering on behalf of those entities have an ongoing duty to maintain the confidentiality mandated by this rule. But the Regulation Counsel may disclose any information reasonably necessary either to correct false or misleading public statements made during a disability proceeding or to defend against litigation in which the Regulation Counsel is a named defendant. A lawyer may release information arising from the lawyer's own disability proceeding or authorize the Regulation Counsel to release such information, unless the information is made confidential by rule or order.(f) Costs. The Regulation Counsel bears the costs of petitioning for a lawyer's transfer to disability inactive status, including examination costs, unless the Presiding Disciplinary Judge exercises discretion to order otherwise.Adopted by the Court, En Banc, May 20, 2021, effective 7/1/2021.