Disciplinary Enforcement Rule IX: Proceedings Where an Attorney Is Declared to Be Mentally Incompetent or Is Alleged to Be Incapacitated

(a) Attorneys Declared Mentally Incompetent. Where an attorney who is a member of the bar of this Court has been judicially declared incompetent or involuntarily committed to a mental hospital, the Court, upon proper proof of the fact, shall enter an order suspending such attorney from the practice of law effective immediately and for an indefinite period until further order of the Court. A copy of such order shall be served upon the attorney, his guardian and the Director of the mental health hospital in such a manner as the Court may direct.

(b) Attorneys Alleged to be Incapacitated. Whenever it appears to the Court that a member of the bar may be incapacitated by reason of mental infirmity or illness or because of the use of drugs or intoxicants, 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 experts as the Court shall designate, and including reference of the matter to the Committee. Failure or refusal to submit to such examination shall be prima facie evidence of incapacity. If the Court concludes that the attorney is incapacitated and should not be permitted to continue to practice law before the Court, it shall enter an order suspending the attorney for an indefinite period and until further order of the Court. The Court may provide for such notice to the respondent attorney of proceedings in the matter as is deemed proper and advisable and may appoint an attorney to represent the respondent if the respondent is without representation.

(c) Claim of Disability During Disciplinary Proceedings. If during the course of a disciplinary proceeding the respondent contends that he or she is suffering from a disability by reason of a mental or physical infirmity or illness or because of the use of drugs or intoxicants, and that this disability makes it impossible for the respondent to make an adequate defense, the Court shall enter an order immediately suspending the respondent from continuing to practice law before this Court until a determination is made of the respondent's capacity to continue to practice law in a proceeding instituted in accordance with the provisions of paragraph (B) above.

(d) Application for Reinstatement. Any attorney suspended for incompetency, mental illness or because of the use of drugs or intoxicants may apply to the Court for reinstatement once a year or at such shorter intervals as the Court may direct in the order of suspension. The application shall be granted by the Court 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 Court may take or direct such action as it deems necessary or proper to make a determination of whether the attorney's disability has been remedied, including a direction for an examination of the attorney by such qualified medical experts as the Court shall designate. The Court may direct that the expenses of such an examination shall be paid by the attorney.

Where 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 court may dispense with further evidence and direct the reinstatement of the attorney upon such terms as are deemed proper and advisable.

(e) Waiver of Physician-Patient Privilege. The filing of an application for reinstatement by an attorney who has been suspended for disability shall constitute a waiver of any doctor-patient privilege with respect to any treatment of the attorney during the period of his disability for the condition underlying the suspension. The attorney may be required to disclose the name of every psychiatrist, psychologist, physician and hospital by whom or in which the attorney has been examined or treated since his suspension for the condition underlying the suspension, and may be required to furnish the Court with written consent for such psychiatrists, psychologists, physicians or hospitals to divulge such information or records as may be requested by the medical experts designated by the Court.