Rule 20 Incompetency; Incapacity
Rule Text
(a) Burden. The Committee has the burden of showing incapacity or incompetency by a preponderance of the evidence.
(b) Process.
(1) Judicial Declaration or Involuntary Commitment. After receiving notice from the Committee or another reliable source, the Supreme Court may immediately and indefinitely suspend an attorney who has been: (1) judicially declared incompetent or incapacitated; or (2) involuntarily committed for treatment of a medical, emotional, or alcohol/drug dependent condition.
(2) Committee Petition. If an attorney is not the subject of a disciplinary proceeding then the Committee may petition the Supreme Court to determine whether the attorney is incapacitated or incompetent. After receiving such a petition and concluding the petition presents a reasonable basis for its conclusion, the Court must refer the matter to the Superior Court for proceedings consistent with Rule 13. The sole purpose of the proceedings initiated by Rule 19(b)(2) is to determine whether the attorney is incapacitated or incompetent. During the proceedings before the Superior Court, the Committee (or its designee) acts in place of prosecuting counsel and the only discipline that may be imposed is an indefinite-suspension order.
(3) Court Initiated. If an attorney is the subject of a disciplinary proceeding and the court concludes there is a reasonable basis to question the respondent’s capacity or competency to present a defense or appeal, the court may stay the proceedings but must conduct a hearing consistent with Rule 13 to determine whether the respondent is incapacitated or incompetent. During this hearing, the Committee (or its designee) acts in place of prosecuting counsel and the only discipline that may be imposed is an indefinite-suspension order. If the question of incompetency or incapacity arises during an appeal, the Supreme Court may remand the case for the appropriate hearing in the Superior Court.
(c) Reinstatement. An attorney suspended under Rule 20(b) may file a petition for reinstatement.
(1) Timeline. The petition may be filed immediately after the suspension order is entered.
(2) Contents of Petition. The petition must provide the original suspension order as well as evidence indicating why the suspension should be lifted.
(3) Process. The petition must be filed with the Supreme Court. The Supreme Court can act on it or instruct the Superior Court to act on the petition. After receiving a petition for reinstatement, the court may deny the petition without a hearing if the attorney has failed to make a substantiated showing of competency or capacity. If the attorney has made such a showing, the court must set the matter for a hearing. At the hearing, the petitioner has the burden of demonstrating competency or capacity by clear and convincing evidence.