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Rule 14-523

Rule 14-523. Proceedings inwhich lawyer is declared to be incompetent or alleged to be incapacitated.

(a) Involuntary commitment oradjudication of incompetency. If a lawyer has been judicially declaredincompetent or is involuntarily committed on the grounds of incompetency, OPCcounsel, upon proper proof of the fact, shall file a petition with the districtcourt for the immediate transfer of the lawyer to disability status for anindefinite period until further order of the district court. A copy of the ordershall be served by OPC counsel upon the lawyer or the lawyer's guardian or, ifno guardian or legal representative has been appointed, upon the director ofthe institution to which the lawyer has been committed.

(b) Inability to properlydefend. If a lawyer alleges in the course of a disciplinary proceeding aninability to assist in the defense due to mental or physical incapacity, thedistrict court shall immediately transfer the lawyer to disability statuspending determination of the incapacity.

(b)(1) If the district courtdetermines the claim of inability to defend is valid, the disciplinaryproceeding shall be deferred and the lawyer retained on disability status untilthe district court subsequently considers a petition for transfer of the lawyerto active status. If the district court considering the petition for transferto active status determines the petition should be granted, the interrupteddisciplinary proceedings may resume.

(b)(2) If the district courtdetermines the claim of incapacity to defend to be invalid, the disciplinaryproceeding shall resume.

(c) Proceedings to determineincapacity. Information relating to a lawyer's physical or mental conditionwhich adversely affects the lawyer's ability to practice law shall be investigated,and if warranted, shall be the subject of formal proceedings to determinewhether the lawyer shall be transferred to disability status. Hearings shall beconducted in the same manner as disciplinary proceedings, except that all ofthe proceedings shall be confidential. The district court shall provide forsuch notice to the lawyer of proceedings in the matter as it deems proper andadvisable and may appoint counsel to represent the lawyer if the lawyer iswithout adequate representation. The district court may take or direct whateveraction it deems necessary or proper to determine whether the lawyer is soincapacitated, including the examination of the lawyer by qualified expertsdesignated by the district court. If, upon due consideration of the matter, thedistrict court concludes that the lawyer is incapacitated from continuing topractice law, it shall enter an order transferring the lawyer to disabilitystatus for an indefinite period and until the further order of the districtcourt. Any pending disciplinary proceedings against the lawyer shall be held inabeyance.

(d) Reinstatement fromdisability status.

(d)(1) Court order. No lawyertransferred to disability status may resume active status except by order ofthe district court.

(d)(2) Petition. Any lawyertransferred to disability status shall be entitled to petition for transfer toactive status once a year, or at whatever shorter intervals the district courtmay direct in the order transferring the lawyer to disability status or anymodifications thereof.

(d)(3) Examination. Upon thefiling of a petition for transfer to active status, the district court may takeor direct whatever action it deems necessary or proper to determine whether thedisability has been removed, including a direction for an examination of thelawyer by qualified experts designated by the district court. In itsdiscretion, the district court may direct that the expense of the examinationbe paid by the lawyer.

(d)(4) Waiver of privilege.With the filing of a petition for reinstatement to active status, the lawyershall be required to disclose the name of each psychiatrist, psychologist,physician or other health care provider and hospital or other institution bywhom or in which the lawyer has been examined or treated related to thedisability since the transfer to disability status. The lawyer shall furnishwritten consent to each listed provider to divulge information and recordsrelating to the disability if requested by the district court or districtcourt's appointed experts.

(d)(5) Learning in law; BarExamination. The district court may also direct that the lawyer establish proofof competence and learning in law, which proof may include certification by theBar of successful completion of an examination for admission to practice.

(d)(6) Granting petition fortransfer to active status. The district court shall grant the petition fortransfer to active status upon a showing by clear and convincing evidence thatthe disability has been removed.

(d)(7) Judicial declaration ofcompetence. If a lawyer transferred to disability status on the basis of ajudicial determination of incompetence is subsequently judicially declared tobe competent, the district court may dispense with further evidence that thelawyer's disability has been removed and may immediately order the lawyer'sreinstatement to active status upon terms as are deemed proper and advisable.