Rule 13-23 - Board Proceedings Upon ImpairmentA.Suspension for Impairment. The Board has the power to issue an order of Suspension to a Respondent who has an Impairment. The term of such Suspension is indefinite, and, except as provided below, can be terminated only upon determination by the Board that Respondent no longer has the Impairment. A Respondent who intends to rely upon evidence of an Impairment in mitigation of Misconduct must, absent good cause excusing his or her failure to do so, provide notice not less than 14 days prior to the hearing to Bar Counsel and the District Committee or Board of his or her intention to do so. A finding of Impairment may be utilized by Bar Counsel to: (1) dismiss any pending Complaints or allegations of Misconduct; and(2) move to dismiss a Charge of Misconduct, Certification or Disciplinary Proceeding, on the basis of a finding of Impairment militating against further proceedings, which circumstances of Impairment must be set forth in the Dismissal.B.Burden of Proof. Whenever the existence of an Impairment is alleged in a proceeding under this Rule or in mitigation of allegations of Misconduct, the burden of proving such an Impairment rests with the party asserting its existence. The issue of the existence of an Attorney's Impairment may be raised by any person at any time, and if a District Committee or the Board, during the course of a hearing on allegations of Misconduct against a Respondent, believes that the Respondent may then have an Impairment, the District Committee or the Board may postpone the hearing and initiate an Impairment Proceeding under this Rule. In proceedings to terminate a Suspension for Impairment, the burden of proving the termination of an Impairment is on the Respondent.C.Investigation. Upon receipt of reliable information that raises a substantial question as to whether an Attorney has an Impairment, Bar Counsel must cause an Investigation to be made to determine whether there is reason to believe that the Respondent has the Impairment. As a part of the Investigation of whether an Impairment exists, and for good cause shown in the interest of public protection Bar Counsel may petition the Board to order the Respondent: 1. To undergo psychiatric, physical or other medical examinations by qualified physicians or other health care providers selected by the Board;2. To provide appropriate releases to health care providers authorizing the release of Respondent's psychiatric, physical or other medical records to Bar Counsel and the Board for purposes of the Investigation and any subsequent Impairment proceedings. Upon notice to the Respondent, the Board must hold a hearing to determine whether any such examination or release is appropriate.
D.Summary Suspension. Upon receipt of a notice from the Clerk with supporting documentary evidence that an Attorney has been: a) adjudicated by a court of competent jurisdiction to be incompetent or incapacitated; orb) involuntarily admitted to a hospital (as defined in Va. Code § 37.2-100) for evaluation or treatment of any addiction, inebriety, insanity, intellectual disability, or mental illness, any member of the Board must summarily issue on behalf of the Board an order of Suspension against the Respondent and cause the order to be served on such Respondent.E.Action by Board after a Hearing.1. If Bar Counsel determines that there is reason to believe that an Attorney has an Impairment, Bar Counsel must file a petition with the Board, and the Board must promptly hold a hearing to determine whether such Impairment exists. A copy of the petition must be served on the Respondent. If the Board determines that an Impairment exists, it must enter an order of Suspension.2. The Board must hold a hearing upon petition of a Respondent who is subject to a Suspension for Impairment that alleges that the Impairment no longer exists. Evidence that the Respondent is no longer hospitalized is not conclusive to the Board's determination of the Respondent's ability to resume the practice of law.F.Procedure. Such hearing must be conducted substantially in accordance with the procedures established in proceedings related to Misconduct, except that the public and witnesses, other than the Respondent, must be excluded throughout an Impairment Proceeding when not testifying.G.Guardian Ad Litem. The Board may appoint a guardian ad litem to represent the interests of a Respondent at any time when it appears that such an appointment may be appropriate to protect the interests of a Respondent who is the subject of an Impairment Proceeding and unrepresented by counsel. If no guardian ad litem has been appointed for, and no counsel has made an appearance on behalf of, a Respondent, the notice of any hearing to determine whether the Respondent has an Impairment must order Respondent to advise the Board whether Respondent has retained counsel for the hearing. Unless counsel for such Respondent enters an appearance with the Board within ten days of the date of the notice, the Board must appoint a guardian ad litem to represent the interests of such Respondent.H.Examination. Following a psychiatric, physical or other medical examination, written reports of the results of such examination, along with written reports from other qualified physicians or other health care providers who have examined Respondent, may be considered as evidence by the Board. Such reports must be filed with the Clerk.I.Termination of Suspension. In cases where a Suspension is based upon an adjudication by a court under Paragraph 13-23.D, the Board must promptly enter an order terminating such Suspension upon receipt of an order from a court of competent jurisdiction finding that the Respondent is no longer incompetent or incapacitated.J.Enforcement. The Board has the power to sanction an Attorney for failure to comply with its orders and subpoenae issued in connection with an Impairment Proceeding. The sanction can include a summary Suspension in a case where it is determined that the public and/or the clients of the Attorney are in jeopardy; such action can be sua sponte or on motion by Bar Counsel, with appropriate notice to the Attorney and the Attorney's counsel or guardian ad litem.K.Transfer of Membership Status. Bar Counsel may terminate and close an Impairment Proceeding if the Respondent transfers to the Disabled or Retired class of membership pursuant to Part 6, Section IV, Paragraph 3 of the Rules of Court and files a declaration with the Clerk and the Virginia State Bar's Membership Department that the Respondent will not seek transfer from the Disabled or Retired class of membership. The declaration must be endorsed by the Respondent and, as applicable, the Respondent's counsel or guardian ad litem. The Respondent's transfer to the Disabled or Retired class of membership and filing of the declaration as described above may also be utilized by Bar Counsel to: (1) dismiss any pending Complaints or allegations of Misconduct; and(2) move to dismiss a Charge of Misconduct, Certification, or Disciplinary Proceeding, on the basis of transfer to the Disabled or Retired class of membership, militating against further proceedings, which must be set forth in the Dismissal.Amended by order dated February 27, 2009, effective 5/1/2009; amended by order dated March 19, 2010, effective immediately; amended October 31, 2018, effective 1/1/2019; amended by order dated October 2, 2019, effective 12/1/2019; amended by order dated May 1, 2020, effective 6/30/2020; amended by order dated May 17, 2021, effective 7/16/2021; order dated May 9, 2023, effective 5/9/2023.