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

(a) Involuntary commitment or adjudication of incompetency. If a lawyer has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency, OPC counsel, upon proper proof of the fact, shall 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. A copy of the order shall be served by OPC counsel upon the lawyer or the lawyer's guardian or, if no guardian or legal representative has been appointed, upon 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 shall immediately transfer the lawyer to disability status pending determination of the incapacity.

(b)(1) If the district court determines the claim of inability to defend is valid, the disciplinary proceeding shall 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.

(b)(2) If the district court determines the claim of incapacity to defend to be invalid, the disciplinary proceeding shall resume.

(c) Proceedings to determine incapacity. Information relating to a lawyer's physical or mental condition which adversely affects the lawyer's ability to practice law shall be investigated, and if warranted, shall be the subject of formal proceedings to determine whether the lawyer shall be transferred to disability status. Hearings shall be conducted in the same manner as disciplinary proceedings, except that all of the proceedings shall be confidential. The district court shall provide for such notice to the lawyer 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 the examination of the lawyer by qualified experts designated by the district court. If, upon due consideration of the matter, the district court concludes that the lawyer is incapacitated from continuing to practice law, it shall enter an order transferring the lawyer to disability status for an indefinite period and until the further order of the district court. Any pending disciplinary proceedings against the lawyer shall be held in abeyance.

(d) Reinstatement from disability status.

(d)(1) Court order. No lawyer transferred to disability status may resume active status except by order of the district court.

(d)(2) Petition. Any lawyer transferred to disability status shall be 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.

(d)(3) Examination. Upon the filing of 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 a direction for an examination of the lawyer by qualified experts designated by the district court. In its discretion, the district court may direct that the expense of the examination be paid by the lawyer.

(d)(4) Waiver of privilege. With the filing of a petition for reinstatement to active status, the lawyer shall 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 shall furnish written consent to each listed provider to divulge information and records relating to the disability if requested by the district court or district court's appointed experts.

(d)(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 certification by the Bar of successful completion of an examination for admission to practice.

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

(d)(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.