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Rule 11-568. Proceedingsin which Lawyer is declared to be incompetent or alleged to be incapacitated.

(a) Involuntary commitment or adjudication of incompetency. If a Lawyerhas been judicially declared incompetent or is involuntarily committed on the groundsof incompetency, then upon proper proof of the fact, the OPC must file apetition with the district court for the immediate transfer of the Lawyer todisability status for an indefinite period until further order of the districtcourt. The OPC must serve a copy of the order on the Lawyer or the Lawyer?sguardian or, if no guardian or legal representative has been appointed, on thedirector of the institution to which the Lawyer has been committed.

(b) Inability to properly defend. If a Lawyer alleges in the course ofa disciplinary proceeding an inability to assist in the defense due to mentalor physical incapacity, the district court will immediately transfer the Lawyerto disability status pending determination of the incapacity.

(1)If the district court determines the claim of inability to defend is valid, thedisciplinary proceeding will be deferred and the Lawyer retained on disabilitystatus until the district court subsequently considers a petition for transferof the Lawyer to active status. If the district court considering the petitionfor transfer to active status determines the petition should be granted, theinterrupted 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 aLawyer?s physical or mental condition that adversely affects the Lawyer?sability to practice law will be investigated, and if warranted, will be thesubject of formal proceedings to determine whether the Lawyer must betransferred to disability status. Hearings will be conducted in the same manneras disciplinary proceedings, except that all of the proceedings will beconfidential. The district court will provide the Lawyer with such notice ofproceedings in the matter as it deems proper and advisable and may appointcounsel to represent the Lawyer if the Lawyer is without adequaterepresentation. The district court may take or direct whatever action it deemsnecessary or proper to determine whether the Lawyer is so incapacitated,including designating qualified experts to examine the Lawyer. If the districtcourt concludes that the Lawyer is incapacitated from continuing to practicelaw, it will enter an order transferring the Lawyer to disability status for anindefinite period and until the further order. Any pending disciplinaryproceedings against the Lawyer will be held in abeyance.

(d) Reinstatement from disability status.

(1)Court order. No Lawyer transferredto disability status may resume active status except by district court order.

(2)Petition. Any Lawyer transferred todisability status is entitled to petition for transfer to active status once ayear, or at whatever shorter intervals the district court may direct in theorder transferring the Lawyer to disability status or any modificationsthereof.

(3)Examination. Upon filing a petitionfor transfer to active status, the district court may take or direct whateveraction it deems necessary or proper to determine whether the disability hasbeen removed, including directing designated qualified experts to examine theLawyer. In its discretion, the district court may direct the Lawyer to pay theexamination expense.

(4)Waiver of privilege. When filing apetition for reinstatement to active status, the Lawyer will be required todisclose the name of each psychiatrist, psychologist, physician, or otherhealth care provider and hospital or other institution by whom or in which theLawyer has been examined or treated related to the disability since thetransfer to disability status. The Lawyer must furnish written consent to eachlisted provider to divulge information and records relating to the disabilityif requested by the district court or the district court?s appointed experts.

(5)Learning in law; Barexamination. The district court may also direct that the Lawyer establishproof of competence and learning in law, which proof may include the Bar?scertification that the Lawyer has successfully completed an examination for relicensure.

(6)Granting petition for transfer to activestatus. The district court will grant the petition for transfer to activestatus on a showing by clear and convincing evidence that the disability hasbeen removed.

(7)Judicial declaration of competence.If a Lawyer transferred to disability status on the basis of a judicialdetermination of incompetence is subsequently judicially declared to becompetent, 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.

EffectiveDecember 15, 2020