Local Rule LCrR 57.30: PROCEEDINGS WHERE AN ATTORNEY IS DECLARED TO BE MENTALLY INCOMPETENT OR IS ALLEGED TO BE INCAPACITATED

LCrR 57.30 PROCEEDINGS WHERE AN ATTORNEY IS DECLARED TO BE MENTALLY INCOMPETENT OR IS ALLEGED TO BE INCAPACITATED

(a) ATTORNEYS DECLARED INCOMPETENT OR PHYSICALLY INFIRM.

If an attorney who is subject to these Rules has been judicially declared incompetent or involuntarily committed to a mental hospital, or has resigned from the bar of any court or been suspended from such a bar on the basis of such mental incompetence or incapacity or on the basis of physical infirmity or illness, the Disciplinary Panel, 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 such attorney, his/her guardian and the administrator of any hospital or other institution if the Court is informed such attorney is a patient thereof in such manner as the Disciplinary Panel may direct.

(b) ATTORNEYS ALLEGED TO BE INCAPACITATED.

Whenever the Committee shall petition the Disciplinary Panel to determine whether an attorney who is subject to these Rules is incapacitated from continuing the practice of law by reason of mental infirmity or illness or because of the use of drugs or intoxicants, the Disciplinary Panel 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 Disciplinary Panel shall designate. Failure or refusal to submit to such examination shall be prima facie evidence of incapacity. If upon due consideration of the matter the Disciplinary Panel concludes that the attorney is incapacitated from continuing to practice law it shall enter an order suspending the attorney on the ground of such disability for an indefinite period and until further order of the Court.

The Disciplinary Panel may provide for such notice to the attorney of proceedings in the matter as it deems proper and advisable and may appoint an attorney to represent the attorney if the attorney is without representation.

(c) CLAIM OF DISABILITY DURING DISCIPLINARY PROCEEDINGS.

If during the course of a disciplinary proceeding the attorney contends that he/she is suffering from a disability by reason of mental or physical infirmity or illness or because of the use of drugs or intoxicants which makes it impossible for the attorney to defend adequately, the Disciplinary Panel shall enter an order immediately suspending the attorney from continuing to practice law until a determination is made of the attorney'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 under this Rule for incompetency, mental illness, physical infirmity or because of the use of drugs or intoxicants may apply to the Disciplinary Panel for reinstatement immediately and thereafter once a year or at such shorter intervals as the Disciplinary Panel may direct in the order of suspension. The application shall be granted by the Disciplinary Panel, upon a showing by clear and convincing evidence that the attorney's disability has been removed and that the attorney is fit to resume the practice of law provided, however, that if the suspension was based on resignation from the bar of another court the attorney must provide proof that the attorney has been reinstated in the other court, or that, if the suspension from practice before this Court was based on a finding of incompetence or incapacity by another court, it clearly appears on the face of the record that any of the five elements set forth in LCrR 57.27(c)(4) exist. The Disciplinary Panel 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. The Disciplinary Panel may direct that the expenses of such an examination shall be paid for by the attorney.

If 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 it deems proper and advisable.

(e) EVIDENTIARY HEARING.

If the Disciplinary Panel holds an evidentiary hearing to determine whether an attorney is incapacitated or on an attorney's application for reinstatement under this Rule, the Chair of the Committee shall appoint one or more members of the Committee to appear for the purpose of examining and cross-examining witnesses and /or offering proof or argument pertinent to the issues.

(f) 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 physical patient privilege with respect to any treatment of the attorney during the period of the attorney's disability. The attorney shall 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 the attorney's suspension and the attorney shall furnish the Disciplinary Panel with written consents for such psychiatrists, psychologists, physicians or hospital to disclose such information or records as may be requested by the medical experts designated by the Disciplinary Panel.