(a) Involuntary commitment or adjudication of incompetency. If a Lawyer has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency, then upon proper proof of the fact, the OPC must file a petition with the district court for the immediate transfer of the Lawyer to disability status for an indefinite period until further order of the district court. The OPC must serve a copy of the order on the Lawyer or the Lawyer’s guardian or, if no guardian or legal representative has been appointed, on the director of the institution to which the Lawyer has been committed.
(b) Inability to properly defend. If a Lawyer alleges in the course of a disciplinary proceeding an inability to assist in the defense due to mental or physical incapacity, the district court will immediately transfer the Lawyer to disability status pending determination of the incapacity.
(1) If the district court determines the claim of inability to defend is valid, the disciplinary proceeding will be deferred and the Lawyer retained on disability status until the district court subsequently considers a petition for transfer of the Lawyer to active status. If the district court considering the petition for transfer to active status determines the petition should be granted, the interrupted disciplinary proceedings may resume.
(2) If the district court determines the claim of incapacity to defend to be invalid, the disciplinary proceeding will resume.
(c) Proceedings to determine incapacity. Information relating to a Lawyer’s physical or mental condition that adversely affects the Lawyer’s ability to practice law will be investigated, and if warranted, will be the subject of formal proceedings to determine whether the Lawyer must be transferred to disability status. Hearings will be conducted in the same manner as disciplinary proceedings, except that all of the proceedings will be confidential. The district court will provide the Lawyer with such notice of proceedings in the matter as it deems proper and advisable and may appoint counsel to represent the Lawyer if the Lawyer is without adequate representation. The district court may take or direct whatever action it deems necessary or proper to determine whether the Lawyer is so incapacitated, including designating qualified experts to examine the Lawyer. If the district court concludes that the Lawyer is incapacitated from continuing to practice law, it will enter an order transferring the Lawyer to disability status for an indefinite period and until the further order. Any pending disciplinary proceedings against the Lawyer will be held in abeyance.
(d) Reinstatement from disability status.
(1) Court order. No Lawyer transferred to disability status may resume active status except by district court order.
(2) Petition. Any Lawyer transferred to disability status is entitled to petition for transfer to active status once a year, or at whatever shorter intervals the district court may direct in the order transferring the Lawyer to disability status or any modifications thereof.
(3) Examination. Upon filing a petition for transfer to active status, the district court may take or direct whatever action it deems necessary or proper to determine whether the disability has been removed, including directing designated qualified experts to examine the Lawyer. In its discretion, the district court may direct the Lawyer to pay the examination expense.
(4) Waiver of privilege. When filing a petition for reinstatement to active status, the Lawyer will be required to disclose the name of each psychiatrist, psychologist, physician, or other health care provider and hospital or other institution by whom or in which the Lawyer has been examined or treated related to the disability since the transfer to disability status. The Lawyer must furnish written consent to each listed provider to divulge information and records relating to the disability if requested by the district court or the district court’s appointed experts.
(5) Learning in law; Bar examination. The district court may also direct that the Lawyer establish proof of competence and learning in law, which proof may include the Bar’s certification that the Lawyer has successfully completed an examination for relicensure.
(6) Granting petition for transfer to active status. The district court will grant the petition for transfer to active status on a showing by clear and convincing evidence that the disability has been removed.
(7) Judicial declaration of competence. If a Lawyer transferred to disability status on the basis of a judicial determination of incompetence is subsequently judicially declared to be competent, the district court may dispense with further evidence that the Lawyer’s disability has been removed and may immediately order the Lawyer’s reinstatement to active status upon terms as are deemed proper and advisable.
Effective December 15, 2020