Rule 117 - Proceedings when an attorney is declared to be incompetent or is alleged to be incapacitated.1. Judicial declaration of incompetency or commitment. Upon proof that an attorney has been judicially declared incompetent or involuntarily committed on the grounds of incompetency or disability, the supreme court shall enter an order transferring the attorney to disability inactive status until the further order of the court. A copy of the order shall be served on the attorney, their guardian, or the director of the institution to which they have been committed in such manner as the court may direct.2. Petition to determine competency; notice. Whenever a disciplinary board or a hearing panel believes that an attorney is incapable of continuing the practice of law because of mental infirmity, illness, or addiction, it may file a petition with the supreme court seeking a determination of the attorney’s competency. Such a petition may also be filed by joint stipulation of the parties. A petition to determine an attorney’s competency should be filed separately from any discipline matter that may be pending and should be marked confidential in accordance with SCR121. Upon the filing of such a petition, the court may take or direct such action as it deems necessary to determine whether the attorney is incapacitated, including referral of the matter to the appropriate disciplinary board for hearing and recommendation by a hearing panel or the examination of the attorney by qualified medical experts. If, upon due consideration, the court concludes that the attorney is incapacitated for the purpose of practicing law, it shall enter an order transferring them to disability inactive status. Any pending disciplinary proceeding or investigation against the attorney shall be suspended. The court shall provide for notice to the attorney as it deems necessary and may appoint counsel to represent the attorney if they are without adequate representation.
3.Transfer to disability inactive status prior to determination of competency. If, during the course of a disciplinary proceeding or investigation, the attorney contends in a petition or joint petition filed with the supreme court that they are suffering from a disability due to mental or physical infirmity, illness, or addiction, which makes it impossible for the attorney to adequately defend the disciplinary proceeding, the supreme court shall enter an order transferring the attorney to disability inactive status until a determination is made of the attorney’s capacity to continue to practice law in a proceeding instituted in accordance with the provisions of subsection 2 above. If the court determines that the attorney is not incapacitated from practicing law, it shall take such action as it deems necessary, including a direction for the resumption of the disciplinary proceeding against the attorney.
4. Resumption of practice by disabled attorney. An attorney transferred to disability inactive status under the provisions of this rule may not resume active status until reinstated by order of the supreme court. An attorney transferred to disability inactive status under the provisions of this rule shall be entitled to petition for reinstatement to active status no sooner than 1 year following the transfer to disability inactive status or after an unsuccessful petition for reinstatement filed by the same attorney, unless otherwise ordered by the court. The petition shall be filed with bar counsel’s office and shall be set for hearing before a hearing panel, which shall consider whether the attorney has demonstrated by clear and convincing evidence that the attorney’s disability has been removed and that they are fit to resume the practice of law. The panel may direct that the attorney establish competence and learning in law, including certification by the bar examiners that the attorney successfully completed an examination for admission to practice after being transferred to disability inactive status. Reinstatement shall be conditioned upon the attorney’s repayment to the Clients’ Security Fund of clients who were reimbursed on the attorney’s behalf. The panel shall file findings of fact, conclusions of law, and a recommendation on reinstatement within 30 days of the hearing’s conclusion, which shall be filed with bar counsel’s office and served pursuant to SCR109(1). Bar counsel shall forward the record of the hearing panel proceeding to the supreme court within 30 days of the decision’s entry. Receipt of the record shall be acknowledged in writing by the supreme court clerk. The parties shall have 30 days from the date the supreme court acknowledges receipt of the record within which to file any objection to the panel’s recommendation. If none is filed, then the matter shall be submitted for decision. If the supreme court concludes that the attorney’s disability has been removed and that the attorney is fit to practice law, then the supreme court may reinstate the attorney to active status, with any conditions that may be appropriate to protect the attorney’s clients or the public. If any disciplinary proceeding against the attorney was suspended by the attorney’s transfer to disability inactive status, then the supreme court may direct the state bar to resume the disciplinary proceeding. If the supreme court is not satisfied that the attorney’s disability has been removed, then it may take such action as it deems appropriate, including denying the petition.
When an attorney who has been transferred to disability inactive status is later judicially declared to be competent, the attorney may file a petition for reinstatement with the supreme court, attaching a copy of the judicial declaration of competency. The petition shall state whether any disciplinary proceedings were pending against the attorney at the time they were transferred to disability inactive status. Upon the filing of such a petition, the supreme court may dispense with further evidence that the attorney’s disability has been removed and may direct the attorney’s reinstatement to active status upon such terms as are deemed appropriate or may direct the state bar to resume any disciplinary proceedings that were suspended by the attorney’s transfer to disability inactive status.
5. Burden of proof. In a proceeding for transfer to disability inactive status or for reinstatement under this rule, the burden of proof rests with the petitioner. 6. Waiver of privilege and disclosure by filing petition for reinstatement. The filing of a petition for reinstatement under this rule waives any doctor-patient privilege with respect to any treatment, diagnosis, or prognosis of the attorney during disability. The attorney shall be required to disclose the name of every treatment provider by whom or in which the attorney has been examined or treated since being transferred to disability inactive status, and the attorney shall furnish every treatment provider the attorney’s written consent to divulge such information and records as requested by the supreme court, its appointed medical experts, the office of bar counsel, or any hearing panel.7. Notice. An attorney who is transferred to inactive status must comply with SCR115, if they are able to do so. If the attorney’s disability precludes compliance with SCR 115, or if the attorney fails to comply, then bar counsel shall proceed under SCR121.1. Bar counsel shall also comply with SCR115.Added; effective 2/15/1979; amended effective 3/1/2007; last amended effective 10/5/2015; amended effective 10/26/2023.