(a) Attorneys Declared Mentally Incompetent. The Disciplinary Panel must enter
an order suspending a member of the bar of this court from the practice of law
where the attorney:
(1) has been judicially declared incompetent; or
(2) has been involuntarily committed to a mental hospital; and
(3) the Disciplinary Panel has proper proof of the fact.
Such suspension is effective immediately and extends for an indefinite period, until
further order of the Disciplinary Panel. A copy of such order must be served upon
the attorney, his or her guardian, and the director of the mental hospital. Service
may be effected in such manner as the Disciplinary Panel directs.
(b) Attorneys Alleged to Be Incapacitated.
(1) Determination Whether Attorney is Incapacitated. Through its chairperson,
a hearing panel may petition the Disciplinary Panel to determine whether a
member of the bar of this court is incapacitated from practicing law based
on mental or physical infirmity or illness or use of drugs or intoxicants.
When petitioned in this manner, the Disciplinary Panel may take or direct
such action as it deems necessary or proper to determine whether the
attorney is so incapacitated. This may include designating qualified
medical experts to examine the attorney. The attorney’s failure or refusal
to submit to such examination is prima facie evidence of incapacity. If after
due consideration, the Disciplinary Panel concludes that the attorney is
incapacitated from practicing law, it must enter an order suspending or
transferring him or her to inactive status until further order of the
Disciplinary Panel.
(2) Notice. The Disciplinary Panel may provide for such notice to the
respondent of proceedings in the matter as is deemed proper and advisable.
(3) Appointment of Representation. The Disciplinary Panel may appoint an
attorney to represent the respondent if he or she is without representation.
(c) Placement on Disability Inactive Status By Another Jurisdiction. If the
Disciplinary Panel receives notice that another jurisdiction has placed a member of
the bar of this court on disability inactive status, the Disciplinary Panel may enter
an order suspending the attorney from the practice of law. Such suspension is
effective immediately and extends for an indefinite period, until further order of the
Disciplinary Panel. A copy of such order must be served upon the attorney, his or
her guardian, and the director of the mental hospital. Service may be effected in
such manner as the Disciplinary Panel directs.
(d) Claim of Disability During Disciplinary Proceedings. If, during a disciplinary
proceeding, the respondent contends that he or she is suffering from a disability by
reason of mental or physical infirmity or illness or use of drugs or intoxicants that
makes it impossible for the respondent to adequately defend himself or herself, the
Disciplinary Panel must enter an order immediately suspending the respondent
from practicing law until a determination is made of the respondent’s capacity to
continue to practice law.
(e) Application for Reinstatement.
(1) Determination Whether Disability Has Been Remedied. Any attorney
suspended for incompetency, mental or physical infirmity or illness, or
because of use of drugs or intoxicants may apply to the Disciplinary Panel
for reinstatement once a year, or at such shorter intervals as the Disciplinary
Panel may direct in the order of suspension. The Disciplinary Panel must
grant the application upon a showing by clear and convincing evidence that
the attorney’s disability has been removed and he or she is fit to resume the
practice of law. The Disciplinary Panel may take or direct such action as it
deems necessary or proper to determine whether the attorney’s disability
has been remedied. This includes directing the attorney be examined by
such qualified medical experts as the Disciplinary Panel designates. The
Disciplinary Panel may direct the applicant pay the expenses of such an
examination.
(2) Declaration of Competence. When an attorney has been suspended because
of a judicial declaration of incompetence or involuntary commitment to a
mental hospital and has thereafter been judicially declared to be competent,
the Disciplinary Panel may dispense with further evidence and direct the
reinstatement of the attorney upon such terms as are deemed proper and
advisable.
(f) Evidentiary Hearing.
(1) Appointment of Disciplinary Counsel. If an evidentiary hearing is held to
determine whether an attorney is incapacitated or to consider an attorney’s
application for reinstatement, the Disciplinary Panel may appoint
Disciplinary Counsel to appear for the purpose of examining and cross-
examining witnesses and offering proof pertinent to the issues.
(2) Burden of Proof. The burden of proof in proceedings to transfer to disability
inactive status is on Disciplinary Counsel. The burden of proof in
proceedings seeking reinstatement, readmission, or transfer from disability
inactive status is on the applicant.
(g) Waiver of Physician-Patient Privilege. By filing an application for reinstatement,
an attorney who has been suspended for disability waives any physician-patient
privilege regarding his or her treatment during the period of disability. The attorney
must disclose the name of every psychiatrist, psychologist, physician, and hospital
by whom or in which the attorney has been examined or treated since suspension.
The attorney also must furnish the Disciplinary Panel with written consent for such
psychiatrists, psychologists, physicians, or hospitals to divulge any information or
records the medical experts designated by the Disciplinary Panel may request.
***
As amended 3/17/10, 3/17/04, 11/16/90.
