Section 22 - Proceedings in Which Lawyer is Declared to be Incompetent or Alleged to be IncapacitatedA. Involuntary Commitment or Adjudication of Incompetency. If a lawyer has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or disability, the court, upon proper proof of the fact, shall enter an order immediately transferring the lawyer to disability inactive status for an indefinite period until the further order of the court. A copy of the order shall be served, in the manner the court may direct, upon the lawyer, his or her guardian, or the director of the institution to which the lawyer has been committed.B.Transfer to Disability Inactive Status When No Disciplinary Proceeding is Pending. Any lawyer claiming that he/she should be transferred to disability inactive status, when there is no disciplinary proceeding or investigation pending, shall file an appropriate pleading in this court. The lawyer shall append to the pleading pertinent information, documentation, and evidence which supports the lawyer's claim that he/she should be transferred to disability inactive status. The lawyer shall also certify in the pleading that there is no disciplinary proceeding or investigation pending against him/her. The pleading and attachments shall be filed under seal. A copy of the pleading, and any attachments thereto, shall be served upon disciplinary counsel. Within fifteen days after being served with the lawyer's pleading, disciplinary counsel shall file under seal and certify to this court that no disciplinary proceeding or investigation is pending, and may file under seal an objection, concurrence, or other appropriate response to the lawyer's pleading. A copy of disciplinary counsel's filing shall be served upon the lawyer claiming that he/she should be transferred to disability inactive status.
The court may then summarily transfer the lawyer to disability inactive status, without the need for a hearing, or take any other action the court deems appropriate.
C.Transfer to Disability Inactive Status When Disciplinary Proceeding is Pending. When a disciplinary proceeding or investigation is pending, a lawyer may not apply for disability inactive status unless he/she alleges an inability to assist in his/her defense due to mental or physical incapacity. When the lawyer makes such an allegation , the motion to transfer to disability inactive status shall be served upon disciplinary counsel who will be afforded ten (10) days within which to respond to the motion. The court may issue such order as may be appropriate, including one which immediately transfers the lawyer to interim disability inactive status pending a hearing to determine the validity of the claim, and all disciplinary proceedings will be stayed pending this determination. Any lawyer transferred to interim disability inactive status shall comply with the notice requirements of Section 26. (1) The hearing shall be conducted before a hearing committee on an expedited basis and shall be confidential. Within fifteen (15) days of the hearing, or as soon thereafter as is practicable, the hearing committee shall file its report and recommendations, under seal, in this court.(2) If, after receiving the report of the hearing committee, the court determines the claim of inability to defend is valid, the disciplinary proceeding or investigation shall be stayed and the respondent shall be transferred to disability inactive status until the court subsequently considers a petition for transfer to active status. In the event the respondent is transferred back to active status, the stayed disciplinary proceeding or investigation may be resumed.(3) If the court determines the claim of inability to defend to be invalid, the disciplinary proceeding or investigation shall resume immediately. A finding by the court that the lawyer's claim of an inability to assist in his/her defense due to mental or physical incapacity was frivolous may be considered as an aggravating factor by the hearing committee in recommending discipline in the underlying proceeding.D.Transfer to Disability Inactive Status When Information Concerning the Incapacity of a Lawyer is Received from a Third Party. When disciplinary counsel receives information from a third party which relates to a lawyer's physical or mental condition and which adversely affects the lawyer's ability to practice law, disciplinary counsel shall investigate. If warranted by the investigation, disciplinary counsel shall file an appropriate pleading with the court, requesting that the lawyer be transferred to disability inactive status and serve a copy upon the lawyer. The Court may issue an appropriate order, including that a hearing before a hearing committee be held to determine whether the lawyer shall be transferred to disability inactive status. If the Court orders that a hearing be held: (1) The hearing shall be conducted before a hearing committee on an expedited basis and shall be confidential. Within fifteen (15) days of the hearing, or as soon thereafter as is practicable, the hearing committee shall file its report and recommendations, under seal, in this court.(2) If, after receiving the report of the hearing committee, the court determines the lawyer is incapacitated, the lawyer shall be transferred to disability inactive status until the court subsequently considers a petition for transfer to active status. Any disciplinary proceeding or investigation which is pending against the lawyer shall be held in abeyance. In the event the lawyer is transferred back to active status, any disciplinary proceeding or investigation which had commenced prior to the transfer to disability inactive status may be resumed.(3) If the court determines that the lawyer should not be transferred to disability inactive status, any pending disciplinary proceeding or investigation shall resume immediately.E. General Provisions. If a hearing before a hearing committee is in order, the board administrator shall provide adequate notice to the respondent of proceedings conducted pursuant to subparts C and D of this section. The hearing committee may take or direct whatever action it deems necessary or proper to determine whether the respondent is incapacitated, including the examination of the respondent by qualified medical experts.F.Public Notice of Transfer to Disability Inactive Status. Disciplinary Counsel shall cause a notice of transfer to disability inactive status to be published in the journal of the state bar and in a newspaper of general circulation in each judicial district in which the lawyer maintained an office for the practice of law.G.Transfer to Active Status from Disability Inactive Status.(1)Generally. No respondent transferred to disability inactive status may resume active status except by order of this court.(2)Petition. Any respondent transferred to disability inactive status shall be entitled to petition for transfer to active status once a year, or at whatever shorter intervals the court may direct in the order transferring the respondent to disability inactive status or any modifications thereof.(3)Examination. Upon the filing of a petition for transfer to active status, the court may take or direct whatever action it deems necessary or proper to determine whether the disability has been removed, including an order for an examination of the respondent by qualified medical experts designated by the court. In its discretion, the court may direct that the expense of the examination be paid by the respondent.(4)Required Information; Waiver of Doctor-Patient Privilege. The respondent shall include with the petition for transfer to active status pertinent documentation, information and evidence which shows, by clear and convincing evidence, that the disability has been removed. The respondent shall disclose the name of each psychiatrist, psychologist, physician and hospital or other institution by whom or in which the respondent has been examined or treated since the transfer to disability inactive status. The respondent shall also furnish to this court written consent to the release of information and records relating to the disability if requested by the court or court-appointed medical experts.(5)Certification from Client Assistance Fund. The respondent shall also include with the petition for transfer to active status a certification from the Client Assistance Fund that no payments have been made by the Fund to any of the respondent's clients. To the extent that Client Assistance Funds have been paid to qualifying clients, the respondent shall obtain a certification from the Fund that the Fund has been reimbursed in its entirety, or alternatively, that a payment plan is in effect which will result in reimbursement to the Fund.(6)Learning in Law; Bar Examination. The court may also direct that the respondent establish proof of competence and learning in law, which proof may include certification by the bar examiners of successful completion of an examination for admission to practice.(7)Granting Petition for Transfer to Active Status. The court shall grant the petition for transfer to active status upon a showing by clear and convincing evidence that the disability has been removed and the receipt of the certification from the Client Assistance Fund.(8)Judicial Declaration of Competence. If a respondent transferred to disability inactive status on the basis of a judicial determination of incompetence has been judicially declared to be competent, the court may dispense with further evidence that his disability has been removed and may immediately direct his transfer to active status upon terms as are deemed proper and advisable.Amended April 25, 2019, effective 5/15/2019.