Local Rule Rule 706: Attorney Incapacity

RULE 706. ATTORNEY INCAPACITY

1. Regular Procedure

a) Allegations of Incapacity

If the Court's Disciplinary and Admissions Committee learns that an attorney may be unable to fulfill any professional responsibilities because of a physical or mental disability, infirmity or incapacity, substance abuse, or other impairment, the Disciplinary and Admissions Committee shall conduct an investigation. The investigation may include a recommendation that the Court appoint an attorney-investigator as provided for in L.R. 705.1.b. If the Disciplinary and Admissions Committee finds no basis for the alleged incapacity, it may dismiss the matter and notify the attorney-respondent by letter.

b) Voluntary Transfer to Disability Inactive Status

Unless the Court has initiated formal disciplinary proceedings under L.R. 705.1.c, the attorney-respondent may elect to transfer voluntarily to disability inactive status at any point during an investigation of the attorney's incapacity. An attorney transferred to disability inactive status must apply for reinstatement under L.R. 705.4 prior to returning to active status. Transfer to disability inactive status shall not preclude the Court from proceeding under L.R. 705.1 with respect to any alleged misconduct by the attorney-respondent.

c) Initiation of Formal Proceedings

After its investigation, if the Disciplinary and Admissions Committee determines that the attorney-respondent is unable to fulfill any professional obligations because of a physical or mental disability, infirmity or incapacity, substance abuse, or other impairment, the Disciplinary and Admissions Committee shall recommend that the Court issue an order requiring the attorney-respondent to show cause within thirty (30) days after service of the order why the attorney-respondent should not be transferred to disability inactive status. If an attorney-investigator was appointed, a copy of the attorney-investigator's report shall accompany the show cause order. If the attorney-respondent's response includes a request for a hearing, or if the Court on its own initiative determines that a hearing is necessary, the matter shall be assigned for a prompt hearing as provided for in L.R. 705.1.d.

d) Recommendation and Final Action

i) Following the hearing, the presiding judge or panel of judges shall prepare a report and recommendation for consideration by the Disciplinary and Admissions Committee. The Disciplinary and Admissions Committee shall then recommend whether the attorney should be transferred to disability inactive status for consideration by the Court. The Court will determine the final action in the matter, and the Chief Judge will issue an appropriate order on behalf of the Court.

ii) If no hearing is held, the Disciplinary and Admissions Committee shall make a recommendation to the Court as to whether the attorney should be transferred to disability inactive status. The Court will review the Committee's recommendation and determine final action in the matter. The Chief Judge will then issue an appropriate order on behalf of the Court.

2. Expedited Procedure

a) Upon receipt of information that because of a physical or mental disability, infirmity or incapacity, substance abuse, or other impairment, an attorney poses an immediate threat of causing (1) death or substantial bodily harm to oneself or another; (2) substantial injury to the financial interest or property of oneself or another; or (3) substantial harm to the administration of justice, including a failure to respond to disciplinary investigation-related inquiries or court orders, the Disciplinary and Admissions Committee may recommend the Court immediately transfer the attorney-respondent to disability inactive status pending an investigation under L.R. 706.1.

b) If the Court accepts the Disciplinary and Admissions Committee's recommendation, then the Court shall issue an order (1) immediately transferring the attorney-respondent to disability inactive status pending an investigation under L.R. 706.1 and (2) giving the attorney-respondent thirty (30) days to show cause why the attorney-respondent should not remain on disability inactive status until the Court issues a final order under L.R. 706.1.d.

c) If the attorney-respondent does not file a timely response to the show cause order, then the attorney-respondent shall remain in disability inactive status until the Court issues a final order under L.R. 706.1.d.

d) If the attorney-respondent files a timely response, the Disciplinary and Admissions Committee shall recommend to the Court whether the attorney-respondent shall remain in disability inactive status until the Court issues a final order under L.R. 706.1.d. The Court shall then issue an order either reinstating the attorney-respondent to active status or maintaining the attorney-respondent in disability inactive status until the Court issues a final order under L.R. 706.1.d.

3. Confidentiality

Proceedings under L.R. 706 shall be confidential unless otherwise ordered in a final order entered by the Court. An attorney-investigator's report and supporting materials shall not be publicly disclosed without prior approval by the Disciplinary and Admissions Committee.