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Rule 8:
Proceedings When Practitioner Declared Mentally Incompetent or Alleged to be Incapacitated

(a) Practitioner Declared Mentally Incompetent or Involuntarily Committed. After receiving evidence that a practitioner has been:

(1) Judicially declared incompetent; or

(2) involuntarily committed to a mental health facility,

the Clerk will issue an order imposing on the practitioner concerned an immediate temporary nondisciplinary suspension from practice until proceedings under this Rule are concluded and will mail a copy of the suspension order (along with a copy of these rules) to the practitioner concerned and the guardian, and send copies of the order to the director of the mental-health hospital, any appellants represented by the practitioner concerned, and a sponsoring attorney or organization (including an organization that arranged for pro bono representation by the practitioner concerned before the Court), as appropriate.

(b) Practitioner Alleged to be Incapacitated. After receiving information that:

(1) A practitioner's physical or mental condition may adversely affect the practitioner's ability to practice law; or

(2) a practitioner may be incapacitated for the practice of law by reason of the use of drugs or intoxicants,

the Clerk will inform the Chief Judge. If the Chief Judge determines that the evidence received under this subsection does not have prima facie validity, the matter will be closed and the Chief Judge will direct the Clerk to so notify the practitioner and, if the evidence was received in the form of a grievance, will direct the Clerk to return the grievance to the filing party with notice of that determination. If the Chief Judge determines that the evidence has prima facie validity, the Chief Judge will instruct the Clerk to refer the matter to a Panel and the Clerk will issue an order doing so. The Panel may take or direct action to determine whether the practitioner concerned is so adversely affected or incapacitated, including examination (at the Court's expense) by qualified medical experts designated by the Court. Failure or refusal by the practitioner concerned to submit to such examination is evidence of incapacity. If the evidence is filed by a judge or judges of the Court, that judge or those judges will not be included in the Panel to which the matter is referred. The Clerk will mail to the practitioner concerned a copy of any referral order (along with a copy of these rules).

(c) Determination by the Panel.

(1) After action is taken under subsections (a) or (b) above, the Panel will:

(A) Order the practitioner concerned to show cause why he or she should not be suspended for a specific or indefinite period; or

(B) refer the matter to the Committee for action under Rule 2 and, after receiving the Committee's recommendation, either take no further action and close the case or order the practitioner concerned to show cause why he or she should not be suspended for a specific or indefinite period and

(C) after consideration of any show-cause response, if the Panel determines, by a preponderance of the evidence, that the person is incapacitated and should not be permitted to continue to practice, enter an order suspending the practitioner for a specific or an indefinite period.

(2) All suspensions under this subsection are nondisciplinary.

(3) Copies of any order suspending a practitioner from practice will be mailed or sent, as appropriate, to the list to which an order issued under subsection (a) above is required to be mailed or sent.

(d) Application for Reinstatement.

(1) A former practitioner indefinitely suspended under subsection (c) above may apply for reinstatement only by filing an application with the Clerk, but not until the expiration of at least six months after the date of the suspension or last rejection of reinstatement or at such shorter intervals as the Court may direct in the suspension order.

(2) The applicant must show by clear and convincing evidence that the disability has been removed and that the applicant is fit to resume practice before the Court.

(A) The filing of the application waives any doctor-patient privilege with respect to pertinent treatment and examination received during the period of disability underlying the suspension. The applicant may be required to disclose the name of every medical practitioner and facility from whom or in which he or she received that treatment or examination, and to furnish the Court with written consent for those persons or facilities to divulge information or records concerning that examination or treatment.

(B) The Panel may take or direct appropriate actions to determine whether the disability has been remedied, including review of appropriate documents or requiring an examination, at the applicant's expense, by qualified medical experts designated by the Court.

(3) If it appears that the applicant is no longer incapacitated, the Panel may:

(A) Reinstate the applicant; or

(B) refer the matter to the Committee for action in accordance with the procedures in Rule 2 and, after receiving the Committee's report and any report rebuttal, either reinstate the applicant or deny the application.

(4) When a former practitioner suspended due to either a judicial declaration of incompetence or an involuntary commitment to a mental hospital has been judicially declared to be competent, the Court will accept that declaration as conclusive evidence of the removal of the disability and the Panel will direct the reinstatement of the former practitioner upon such terms as it considers appropriate.

(e) Claim of Disability during Disciplinary Proceedings. Whenever a practitioner claims, during a disciplinary proceeding, that he or she is incapacitated by disability for any of the reasons listed in subsection (b) above and that this disability makes it impossible to present an adequate defense, the Panel will issue an order imposing on the practitioner an immediate temporary nondisciplinary suspension from practice. The Panel will then proceed in accordance with the evidence-gathering procedures set forth in subsection (b) above relating to Panel action in order to determine if the claim is valid. If the claim is found valid, the disciplinary proceedings will be suspended until a determination is made, in accordance with the same procedure, that the incapacitation has ended or no longer impedes the practitioner's ability to participate in the disciplinary proceeding.

(f) Confidentiality. Orders announcing suspensions under this Rule will state only that the Court finds that the practitioner concerned has a disability that precludes his or her continued practice before the Court. See Rule 12.

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