9 Rule 25 Proceedings in Which Lawyer is Declared to be Incompetent or Alleged to be Incapacitated

A. Involuntary Commitment or Adjudication of Incompetency. If a lawyer has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or disability, the Court, upon proper proof of the fact, shall enter an order immediately transferring the lawyer to disability inactive status for an indefinite period until the further order of the Court. A copy of the order shall be served upon the lawyer, the lawyer’s guardian, and the director of the institution to which the lawyer has been committed.

B. Inability to Properly Defend. If a respondent alleges in the course of a disciplinary proceeding that the respondent is unable to assist in the respondent’s own defense due to a mental or physical disability, the Court shall immediately transfer the respondent to disability inactive status pending determination of the incapacity. Such determination shall be made by a hearing panel assigned by the Board, following notice and an opportunity to be heard. The panel shall submit a report to the Court with its recommendation.

(1) If the Court determines the claim of inability to defend is valid, the disciplinary proceeding shall be deferred and the respondent retained on disability inactive status until the respondent’s return to active status.

(2) If the Court determines the claim of inability to defend to be invalid, the disciplinary proceeding shall resume.

C. Proceedings to Determine Incapacity. Information relating to a lawyer’s physical or mental condition which adversely affects the lawyer’s ability to practice law shall be the subject of formal proceedings to determine whether the lawyer shall be transferred to disability inactive status. The Court may take or direct whatever action it deems necessary or proper to determine whether the respondent is so incapacitated, including the examination of the respondent by qualified medical experts designated by the Court. If, upon due consideration of the matter, the Court concludes that the respondent is incapacitated from continuing to practice law, it shall enter an order transferring the lawyer to disability inactive status for an indefinite period and until the further order of the Court. Any pending disciplinary proceedings against the respondent shall be held in abeyance.

The Court shall provide for such notice to the respondent of proceedings in the matter as it deems proper and advisable and may appoint an attorney to represent the respondent if the lawyer is without adequate representation.

D. Public Notice of Transfer to Disability Inactive Status. The Board or its designee shall cause a notice of transfer to disability inactive status to be published in a newspaper of general circulation in each county in which the disabled attorney maintained an office for the practice of law.

E. Reinstatement from Disability Inactive Status.

(1) Generally. No respondent transferred to disability inactive status may resume active status except by order of the Court.

(2) Petition. Any respondent transferred to disability inactive status shall be entitled to petition for transfer to active status once a year, or at whatever shorter intervals the Court may direct in the order transferring the respondent to disability inactive status or any modifications thereof. The petition shall be granted by the Court upon a showing by clear and convincing evidence that the disability has been removed.

(3) Examination. Upon the filing of a petition for transfer to active status, the Court may take or direct whatever action it deems necessary or proper to determine whether the disability has been removed, including a direction for an examination of the respondent by qualified medical experts designated by the Court. In its discretion, the Court may direct that the expense of the examination be paid by the respondent.

(4) Waiver of Doctor-Patient Privilege. The filing of a petition for reinstatement to active status by a respondent transferred to disability inactive status shall be deemed to constitute a waiver of any doctor-patient privilege with respect to any treatment of the respondent during the period of disability. The respondent shall be required to disclose the name of each psychiatrist, psychologist, physician and hospital or other institution by whom or in which the respondent has been examined or treated since being transferred to disability inactive status. The respondent shall furnish to this Court written consent to each doctor to divulge information and records relating to the disability if requested by the Court or court-appointed medical experts.

(5) Learning in Law; Bar Examination. The Court may also direct that the respondent establish proof of competence and learning in law, which proof may include certification by the bar examiners of successful completion of a new examination for admission to practice subsequent to placement on disability inactive status.

(6) Judicial Declaration of Competence. If a respondent transferred to disability inactive status on the basis of a judicial determination of incompetence has been judicially declared to be competent, the Court may dispense with further evidence that the disability has been removed and may immediately direct reinstatement to active status upon terms as are deemed proper and advisable.