Model Rules for Lawyer Disciplinary Enforcement
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.
Inability to Properly Defend. If a respondent alleges in the course of a disciplinary proceeding an inability to assist in the defense due to mental or physical incapacity, the court shall immediately transfer the lawyer to disability inactive status pending determination of the incapacity.
(1) If the court determines the claim of inability to defend is valid, the disciplinary proceeding shall be deferred and the respondent retained on disability inactive status until the court subsequently considers a petition for transfer of the respondent to active status. If the court considering the petition for transfer to active status determines the petition shall be granted, the court shall also determine the disposition of the interrupted disciplinary proceedings.
(2) If the court determines the claim of incapacity to defend to be invalid, the disciplinary proceeding shall resume and the respondent shall immediately be placed on interim suspension pending the final disposition of the matter.Proceedings to Determine Incapacity. Information relating to a lawyer's physical or mental condition which adversely affects the lawyer's ability to practice law shall be investigated, and where warranted, shall be the subject of formal proceedings to determine whether the lawyer shall be transferred to disability inactive status. The hearings shall be conducted in the same manner as disciplinary proceedings, except that all of the proceedings shall be confidential. The court shall provide for such notice to the respondent of proceedings in the matter as it deems proper and advisable and may appoint a lawyer to represent the respondent if the respondent is without adequate representation. The court may take or direct whatever action it deems necessary or proper to determine whether the respondent is so incapacitated, including the examination of the respondent by qualified medical experts designated by the court. If, upon due consideration of the matter, the court concludes that the respondent is incapacitated from continuing to practice law, it shall enter an order transferring the respondent to disability inactive status for an indefinite period and until the further order of the court. Any pending disciplinary proceedings against the respondent shall be held in abeyance.
Public Notice of Transfer to Disability Inactive Status. The board 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.
Reinstatement 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 a direction 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) Waiver of Doctor-Patient Privilege. With the filing of a petition for reinstatement to active status, the respondent shall be required to 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 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) 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.
(6) 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.
(7) 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 reinstatement to active status upon terms as are deemed proper and advisable.
Commentary
Since the principal responsibility of the agency is to protect the public, it must concern itself with disabled lawyers who endanger the interests of clients, even if no misconduct has been committed. It is important that incapacity not be treated as misconduct, and to clearly distinguish willful conduct from conduct beyond the control of the lawyer.
If the lawyer's disability has been judicially determined or is admitted, there is no need for further proceedings before the court issues an order of transfer to disability inactive status. The order transferring the lawyer to disability inactive status should clearly state the conditions which must be met for the lawyer to be reinstated to active status.
If the respondent in a disciplinary proceeding alleges inability to conduct a defense because of present disability, he or she should be transferred immediately to disability inactive status to protect existing and prospective clients. A proceeding to determine whether the respondent is in fact disabled should be initiated immediately. If the respondent is found to be disabled, the transfer to disability inactive status remains in force until and unless he or she has established that the disability has terminated. At such time the further disposition of proceedings alleging misconduct should be determined. If it is determined that the claim of current disability is unsubstantiated, the proceedings predicated on the allegations of misconduct should be immediately resumed.
Disability proceedings remain confidential until the final order of the court, because medical evidence or other peculiarly personal information relating to the lawyer is often involved. Public disclosure is necessary whenever a lawyer's license to practice has been limited in any way. Failure to reveal the fact of transfer to disability inactive status would mislead the public and others likely to come into contact with the lawyer into believing that he remains eligible to practice.
Petitions for reinstatement from disability inactive status should be filed with the board and served on counsel. Factual issues underlying petitions for reinstatement should be assigned by the board to a hearing committee for recommendation to the board and to the court. Orders of reinstatement to active status should 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.
The filing of a petition for reinstatement from disability inactive status must be accompanied by a waiver of doctor-patient privilege so that the court may obtain the information needed to evaluate the claim of rehabilitation. This waiver need apply only to information relating to the disability upon which the transfer to disability inactive status was predicated.
Next - RULE 24. REINSTATEMENT FOLLOWING A SUSPENSION OF SIX MONTHS OR LESS