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RULE 83.6.9 PROCEEDINGS IN WHICH AN ATTORNEY IS DECLARED TO BE MENTALLY INCOMPETENT, IS ALLEGED TO BE INCAPACITATED, OR IS PLACED ON DISABILITY INACTIVE STATUS BY ANOTHER JURISDICTION

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(a) Attorneys Declared Mentally Incompetent. The Disciplinary Panel must enter an order suspending a member of the bar of this court from the practice of law where the attorney:

(1) has been judicially declared incompetent; or
(2) has been involuntarily committed to a mental hospital; and
(3) the Disciplinary Panel has proper proof of the fact. Such suspension is effective immediately and extends for an indefinite period, until further order of the Disciplinary Panel. A copy of such order must be served upon the attorney, his or her guardian, and the director of the mental hospital. Service may be effected in such manner as the Disciplinary Panel directs.

(b) Attorneys Alleged to be Incapacitated.

(1) Determination Whether Attorney is Incapacitated. Through its chairperson, a hearing panel may petition the Disciplinary Panel to determine whether a member of the bar of this court is incapacitated from practicing law based on mental or physical infirmity or illness or use of drugs or intoxicants. When petitioned in this manner, the Disciplinary Panel may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated. This may include designating qualified medical experts to examine the attorney. The attorney's failure or refusal to submit to such examination is prima facie evidence of incapacity. If after due consideration, the Disciplinary Panel concludes that the attorney is incapacitated from practicing law, it must enter an order suspending or transferring him or her to inactive status until further order of the Disciplinary Panel.
(2) Notice. The Disciplinary Panel may provide for such notice to the respondent of proceedings in the matter as is deemed proper and advisable.
(3) Appointment of Representation. The Disciplinary Panel may appoint an attorney to represent the respondent if he or she is without representation.

(c) Placement on Disability Inactive Status by Another

Jurisdiction. If the Disciplinary Panel receives notice that another jurisdiction has placed a member of the bar of this court on disability inactive status, the Disciplinary Panel may enter an order suspending the attorney from the practice of law. Such suspension is effective immediately and extends for an indefinite period, until further order of the Disciplinary Panel. A copy of such order must be served upon the attorney, his or her guardian, and the director of the mental hospital. Service may be effected in such manner as the Disciplinary Panel directs.

(d) Claim of Disability During Disciplinary Proceedings. If, during a disciplinary proceeding, the respondent contends that he or she is suffering from a disability by reason of mental or physical infirmity or illness or use of drugs or intoxicants that makes it impossible for the respondent to adequately defend himself or herself, the Disciplinary Panel must enter an order immediately suspending the respondent from practicing law until a determination is made of the respondent's capacity to continue to practice law.

(e) Application for Reinstatement.

(1) Determination Whether Disability Has Been Remedied. Any attorney suspended for incompetency, mental or physical infirmity or illness, or because of use of drugs or intoxicants may apply to the Disciplinary Panel for reinstatement once a year, or at such shorter intervals as the Disciplinary Panel may direct in the order of suspension. The Disciplinary Panel must grant the application upon a showing by clear and convincing evidence that the attorney's disability has been removed and he or she is fit to resume the practice of law. The Disciplinary Panel may take or direct such action as it deems necessary or proper to determine whether the attorney's disability has been remedied. This includes directing the attorney be examined by such qualified medical experts as the Disciplinary Panel designates. The Disciplinary Panel may direct the applicant pay the expenses of such an examination.
(2) Declaration of Competence. When an attorney has been suspended because of a judicial declaration of incompetence or involuntary commitment to a mental hospital and has thereafter been judicially declared to be competent, the Disciplinary Panel may dispense with further evidence and direct the reinstatement of the attorney upon such terms as are deemed proper and advisable.

(f) Evidentiary Hearing.

(1) Appointment of Disciplinary Counsel. If an evidentiary hearing is held to determine whether an attorney is incapacitated or to consider an attorney's application for reinstatement, the Disciplinary Panel may appoint Disciplinary Counsel to appear for the purpose of examining and cross-examining witnesses and offering proof pertinent to the issues.
(2) Burden of Proof. The burden of proof in proceedings to transfer to disability inactive status is on Disciplinary Counsel. The burden of proof in proceedings seeking reinstatement, readmission, or transfer from disability inactive status is on the applicant.

(g) Waiver of Physician-Patient Privilege. By filing an application for reinstatement, an attorney who has been suspended for disability waives any physician-patient privilege regarding his or her treatment during the period of disability. The attorney must disclose the name of every psychiatrist, psychologist, physician, and hospital by whom or in which the attorney has been examined or treated since suspension. The attorney also must furnish the Disciplinary Panel with written consent for such psychiatrists, psychologists, physicians, or hospitals to divulge any information or records the medical experts designated by the Disciplinary Panel may request.

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As amended 3/17/10, 3/17/04, 11/16/90.