Tenn. R. Sup. Ct., r. 9, 27

As amended through January 7, 2025

Section 27 - Proceedings Where an Attorney Is Declared to Be Incompetent or Is Alleged to Be Incapacitated

27.1. Where an attorney has been judicially declared incompetent or involuntarily committed on the grounds of incompetency or disability or detained or placed in the custody of a center for the treatment of mental illness after a probable cause hearing pursuant to the procedures set forth in Tenn. Code Ann. § 33-6-103, the Court, upon proper proof of the fact, shall enter an order transferring such attorney to disability inactive status effective immediately for an indefinite period until further order of the Court. A copy of such order shall be served upon the attorney, the attorney's guardian, and/or the director of the institution to which the attorney had been committed in such manner as the Court may direct.

27.2. Whenever during the course of an investigation pursuant to Section 15.1 or formal proceedings pursuant to Section 15.2, Disciplinary Counsel obtains information calling into question the mental or physical health of the respondent attorney that raises a substantial concern regarding the respondent attorney's capacity to continue the practice of law or to respond to or defend against a complaint, Disciplinary Counsel should request the respondent attorney to agree voluntarily to submit to an evaluation by the Tennessee Lawyer Assistance Program or an examination by a qualified medical or mental health expert to determine respondent attorney's capacity and report the results of the examination to Disciplinary Counsel and to the respondent attorney and the respondent attorney's counsel. In the event the respondent attorney declines to submit to such evaluation or examination and reporting, Disciplinary Counsel should file a petition with the Court for an order requiring the respondent attorney to submit to an evaluation by the Tennessee Lawyer Assistance Program or an examination by a qualified medical or mental health expert as the Court shall designate, the results of either of which shall be reported to Disciplinary Counsel, the Court, and the respondent attorney and the respondent attorney's counsel. Failure to comply with an order issued under this Subsection may serve as the basis for temporary suspension pursuant to Section 12.3.

27.3. The Board may petition the Court to determine whether an attorney is incapacitated from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or intoxicants, and an attorney, with no disciplinary proceeding or complaint pending, may petition to be transferred to disability inactive status. If such a petition is filed, the Court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical or mental health experts as the Court shall designate or assignment to a hearing panel for a formal hearing to determine the issue of capacity. If the Board petitions the Court, the burden of proof shall be upon the Board and shall be by a preponderance of the evidence. If, upon due consideration of the matter, the Court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order transferring the attorney to disability inactive status on the ground of such disability for an indefinite period and until the further order of the Court. If the Board files a petition pursuant to this Section while a disciplinary proceeding is pending against the respondent attorney, the disciplinary proceeding shall be suspended pending the determination as to the attorney's alleged incapacity.

27.4.

(a) If, during the course of a disciplinary investigation or proceeding involving an attorney who presently is not suspended or disbarred, the respondent attorney contends that he/she is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which disability makes it impossible for the respondent attorney to respond to or defend against the complaint, such contention shall place at issue the respondent attorney's capacity to continue to practice law. Disciplinary Counsel, the respondent attorney or the attorney for the respondent attorney shall file in the Nashville office of the Clerk of the Supreme Court a Notice advising the Court of such contention within ten days of learning of the contention, if the Court has not been otherwise notified. The Court thereupon may enter an order immediately transferring the respondent attorney to disability inactive status for an indefinite period and until the further order of the Court. The Court may take or direct such action as it deems necessary or proper to make a determination as to the respondent attorney's capacity to continue to practice law and to respond to or defend against the complaint, including the examination of the respondent attorney by such qualified medical or mental health experts as the Court shall designate or the referral of the matter to a hearing panel for a formal hearing to determine the respondent attorney's capacity to continue to practice law and to respond to or defend against the complaint. In any such proceeding, the burden of proof shall rest upon the respondent attorney and shall be by a preponderance of the evidence.

(b) If, during the course of a disciplinary investigation or proceeding involving an attorney who is suspended or disbarred, the respondent attorney contends that he/she is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, which disability makes it impossible for the respondent attorney to respond to or defend against the complaint, such contention shall place at issue the respondent attorney's capacity to continue to the disciplinary proceedings. Disciplinary Counsel, the respondent attorney or the attorney for the respondent attorney shall file in the Nashville office of the Clerk of the Supreme Court a Notice advising the Court of such contention within ten days of learning of the contention, if the Court has not been otherwise notified. The Court may take or direct such action as it deems necessary or proper to make a determination as to the respondent attorney's capacity to respond to or defend against the complaint, including the examination of the respondent attorney by such qualified medical or mental health experts as the Court shall designate or the referral of the matter to a hearing panel for a formal hearing to determine the respondent attorney's capacity to continue to practice law and to respond to or defend against the complaint. In any such proceeding, the burden of proof shall rest upon the respondent attorney and shall be by a preponderance of the evidence.

(c) If the Court or hearing panel determines that the respondent attorney is incapacitated from responding to or defending against the complaint, the Court or hearing panel shall take such action as it deems proper and advisable, including a direction for the suspension of the disciplinary proceeding against the respondent attorney.

(d) If the investigation of complaints or disciplinary proceedings has been suspended pursuant to this Section, the Board may petition the Court to require the disabled attorney to provide competent evidence from qualified medical or mental health experts that his or her condition continues to be such that the disabled attorney is not capable of responding to pending disciplinary complaints, or to submit to an examination by such independent qualified medical or mental health experts as the Court shall designate in order to determine whether the condition continues to be such that the disabled attorney is not capable of responding to pending complaints or defending against disciplinary proceedings. The results of such examination shall be reported to the Disciplinary Counsel, the Court and the attorney and the attorney's counsel. In the event such experts determine that the attorney has recovered from the disability to the point that the attorney is capable of defending against allegations of misconduct, the Board may petition the Court for an order permitting the disciplinary proceedings to be reactivated. If the Board files such a petition, the burden of proof shall rest upon the Board and shall be by a preponderance of the evidence. Should the Court permit the disciplinary proceedings to proceed, the cost of the independent medical or mental health examinations shall be charged to the respondent attorney.

27.5. The Board shall cause a notice of transfer to disability inactive status to be published pursuant to Section 28.11.

27.6. Whenever an attorney has been transferred to disability inactive status pursuant to either Section 27.1 or Section 27.3; or, whenever the Board, pursuant to Section 27.2, petitions the Court to determine that an attorney is disabled or incapacitated from continuing the practice of law, the Board shall request such action under the provisions of Section 29 as may be indicated in order to protect the interests of the disabled or allegedly disabled attorney and the attorney's clients.

27.7.

(a) No attorney transferred to disability inactive status pursuant to Section 27 may resume active status until reinstated by order of the Court. Any attorney transferred to disability inactive status pursuant to Section 27 shall be entitled to petition for reinstatement to active status after the disability is removed. The petition for reinstatement shall be filed with the Court in the form adopted by the Board. The petitioner shall serve a copy of the petition upon Disciplinary Counsel, who shall investigate the matter and file an answer to the petition within thirty days. The answer shall include a recommendation as to whether the petition should be granted without a hearing or referred to a hearing panel for a hearing.

(b) Upon the filing of a petition for reinstatement pursuant to Section 27, the Court may take or direct such action as it deems necessary or proper to a determination of whether the attorney's disability has been removed, including a direction for an examination of the attorney by such qualified medical or mental health experts as the Court shall designate and the furnishing of such expert's report to the Board, the Court, and the attorney and the attorney's counsel. In its discretion, the Court may direct that the expense of such an examination shall be paid by the attorney, and that the attorney establish proof of competence and learning in law, which proof may include certification by the Board of Law Examiners of the successful completion of an examination for admission to practice. The Court also may refer the petition to a hearing panel for a hearing in which the petitioner shall have the burden of proof. The hearing shall be governed by Section 30.4. The petition shall be granted upon a showing by clear and convincing evidence that the attorney's disability has been removed and the attorney is fit to resume the practice of law.

(c) Pending disciplinary complaints against the attorney, whether filed before or after the attorney's transfer to disability inactive status, must be resolved before the effective date of any reinstatement. Provided, however, that the Court may order reinstatement pending the completion of any conditional disciplinary action (e.g., probation or restitution) imposed upon the attorney or the final completion of the terms of any agreement executed by the attorney and the Tennessee Lawyer Assistance Program.

27.8. Where an attorney has been transferred to disability inactive status by an order in accordance with Section 27.1 and, thereafter, in proceedings duly taken, the attorney has been judicially declared to be competent, this 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 the Court deems proper and advisable.

27.9. The filing of a petition for reinstatement to active status by an attorney transferred to disability inactive status because of disability shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment of the attorney during the period of disability. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital or other institution by whom or in which the attorney has been examined or treated since the transfer to disability inactive status, and shall furnish to the Court written consent to each to divulge such information and records as requested by court appointed medical experts.

Tenn. R. Sup. Ct., r. 9, 27

Section 27.4 amended by Order filed and effective 10/7/2020.