(a) The
clerk of any court within this Commonwealth that declares that an attorney is
incapacitated or that orders involuntary treatment of an attorney on the
grounds that the attorney is severely mentally disabled or that denies a
petition for review of a certification by a mental health review officer
subjecting an attorney to involuntary treatment shall within 24 days of such
disposition transmit a certificate thereof to Disciplinary Counsel, who shall
file such certificate with the Supreme Court.
(b) Upon being advised that an attorney has
been declared incapacitated or involuntarily committed to an institution on the
grounds of incapacity or severe mental disability, Disciplinary Counsel shall
secure and file a certificate in accordance with the provisions of subdivision
(a) of this rule. If the declaration of incapacity or commitment occurred in
another jurisdiction, it shall be the responsibility of Disciplinary Counsel to
secure and file a certificate of such declaration or commitment.
(c) Where an attorney has been judicially
declared incapacitated or involuntarily committed on the grounds of incapacity
or severe mental disability, the Supreme Court, upon proper proof of the fact,
shall enter an order transferring such attorney to disability inactive status
effective immediately and for an indefinite period until the further order of
the Court. A copy of such order shall be served upon such formerly admitted
attorney, the guardian of such person and/or the director of the institution to
which such person has been committed in such manner as the Court may direct.
Where an attorney has been transferred to disability inactive status by an
order in accordance with the provisions of this subdivision and, thereafter, in
proceedings duly taken, the person is judicially declared to be competent, the
Court upon application may dispense with further evidence that the disability
has been removed and may direct reinstatement to active status upon such terms
as are deemed proper and advisable.
(d) Whenever the Board shall petition the
Court to determine whether an attorney is incapacitated from continuing the
practice of law by reason of mental infirmity or illness or because of
addiction to drugs or intoxicants, the Court may take or direct such action as
it deems necessary or proper to determine whether the attorney is so
incapacitated, including the examination of the attorney by such qualified
medical experts as the Court shall designate. If, upon due consideration of the
matter, the Court concludes that the attorney is incapacitated from continuing
to practice law, it shall enter an order transferring the attorney to
disability inactive status on the ground of such disability for an indefinite
period and until the further order of the Court. If examination of a
respondent-attorney by a qualified medical expert reveals that the respondent
lacks the capacity to aid effectively in the preparation of a defense, the
Court may order that any pending disciplinary proceeding against the respondent
shall be held in abeyance except for the perpetuation of testimony and the
preservation of documentary evidence. The order of abatement may provide for
reexaminations of the respondent-attorney at specified intervals or upon motion
by Disciplinary Counsel. The Court shall provide for such notice to the
respondent-attorney of proceedings in the matter as it deems proper and
advisable and may appoint an attorney to represent the respondent if the
respondent is without adequate representation.
(e) If, during the course of a disciplinary
proceeding, the respondent contends that the respondent is suffering from a
disability by reason of mental or physical infirmity or illness, or because of
addiction to drugs or intoxicants, which makes it impossible for the respondent
to prepare an adequate defense, the respondent shall complete and file with the
Court a certificate of admission of disability. The respondent shall serve a
copy of the certificate on the Board and Disciplinary Counsel. The certificate
shall:
(1) identify the precise nature of the
disability and the specific or approximate date of the onset or initial
diagnosis of the disabling condition;
(2) contain an explanation of the manner in
which the disabling condition makes it impossible for the respondent to prepare
an adequate defense;
(3) have
appended thereto the opinion of at least one medical expert that the respondent
is unable to prepare an adequate defense and a statement containing the basis
for the medical expert's opinion; and
(4) contain a statement, signed by the
respondent, that all averments of material fact contained in the certificate
and attachments are true upon the respondent's knowledge or information and
belief and made subject to the penalties of
18 Pa.C.S. ยง
4904 relating
to unsworn falsification to authorities.
The respondent may attach to the certificate affidavits,
medical records, additional medical expert reports, official records, or other
documents in support of the existence of the disabling condition or the
respondent's contention of lack of physical or mental capacity to prepare an
adequate defense.
Upon receipt of the certificate, the Court thereupon
shall enter an order immediately transferring the respondent to disability
inactive status until a determination is made of the respondent's capacity to
aid effectively in the preparation of a defense or to continue to practice law
in a proceeding instituted in accordance with the provisions of subdivision (d)
of this rule unless the Court finds that the certificate does not comply with
the requirements of this subdivision, in which case the Court may deny the
request for transfer to disability inactive status or enter any other
appropriate order. Before or after the entry of the order transferring the
respondent to disability inactive status under this subdivision, the Court may,
upon application by Disciplinary Counsel and for good cause shown, take or
direct such action as the Court deems necessary or proper to a determination of
whether it is impossible for the respondent to prepare an adequate defense,
including a direction for an examination of the respondent by such qualified
medical experts as the Court shall designate. In its discretion, the Court may
direct that the expense of such an examination shall be paid by the
respondent.
The order transferring the attorney to disability
inactive status under this subdivision shall be a matter of public record. The
certificate of admission of disability and attachments to the certificate shall
not be publicly disclosed or made available for use in any proceeding other
than a subsequent reinstatement or disciplinary proceeding except:
(i) upon order of the Supreme
Court;
(ii) pursuant to an express
written waiver by the attorney; or
(iii) upon a request by the Pennsylvania
Lawyers Fund for Client Security Board pursuant to Enforcement Rule 521(a)
(relating to cooperation with Disciplinary Board).
If the Court shall determine at any time that the
respondent is able to aid effectively in the preparation of a defense or is not
incapacitated from practicing law, it shall take such action as it deems proper
and advisable including a direction for the resumption of the disciplinary
proceeding against the respondent.
(f) The Board shall cause a notice of
transfer to disability inactive status to be published in the legal journal and
a newspaper of general circulation in the county in which the disabled attorney
practiced.
(g) The Board shall
promptly transmit a certified copy of the order of transfer to disability
inactive status to the president judge of the court of common pleas of the
judicial district in which the disabled attorney practiced and shall request
such action under the provisions of Enforcement Rule 321 (relating to
appointment of conservator to protect interests of clients of absent attorney)
as may be indicated in order to protect the interests of the disabled attorney
and the clients of the disabled attorney.
(h) Except as provided in subdivision (c), a
disabled attorney may not resume active status until reinstated by order of the
Court upon petition for reinstatement pursuant to Rule 218 (relating to
reinstatement proceedings). A disabled attorney shall be entitled to apply for
reinstatement to active status once a year or at such shorter intervals as the
Court may direct in the order transferring the respondent to disability
inactive status or any modification thereof. Such application shall be granted
by the Court upon a showing by clear and convincing evidence that the formerly
admitted attorney's disability has been removed and such person is fit to
resume the practice of law. Upon such application, the Court may take or direct
such action as it deems necessary or proper to a determination of whether the
formerly admitted attorney's disability has been removed including a direction
for an examination of the formerly admitted attorney by such qualified medical
experts as the Court shall designate. In its discretion, the Court may direct
that the expense of such an examination shall be paid by the formerly admitted
attorney.
(i) In a proceeding
seeking a transfer to disability inactive status under this rule, the burden of
proof shall rest with the Board. In a proceeding seeking an order of
reinstatement to active status under this rule, the burden of proof shall rest
with the respondent-attorney.
(j)
The filing of an application for reinstatement to active status by a formerly
admitted attorney transferred to disability inactive status shall be deemed to
constitute a waiver of any doctor patient privilege with respect to any
treatment of the formerly admitted attorney during the period of disability.
The formerly admitted attorney shall be required to disclose the name of every
psychiatrist, psychologist, physician and hospital or other institution by whom
or in which the formerly admitted attorney has been examined or treated since
transfer to disability inactive status and shall furnish to the Court written
consent to each to divulge such information and records as requested by court
appointed medical experts.
(k) As
used in this rule, the term "disabled attorney" means an attorney transferred
to disability inactive status under this rule.
(l) See Rule 601(a) (relating to statutes and
other authorities suspended or abrogated).
Notes
The
provisions of this Rule 301 amended through April 1, 1983, effective
4/2/1983, 13 Pa.B. 1179; amended
November 7, 1988, effective 11/25/1988, 18 Pa.B. 5246; amended January 3,
2011, effective in 30 days, 41 Pa.B. 331; amended April 18, 2019, effective in
30 days, 49 Pa.B. 2209.
Amended by
Pennsylvania
Bulletin, Vol 53, No. 31. August 5, 2023, effective
9/1/2023, to
5/1/2024
