Disability proceedings in which a lawyer is alleged or declared to be incompetent or

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 or disability, the Court, upon proper proof of the fact, may enter an order immediately transferring the lawyer to disability inactive status for an indefinite period until further order of the Court. A copy of the order shall be served upon the lawyer, the lawyer’s guardian, and/or the director of the institution to which the lawyer has been committed in the manner the Court may direct. (b) Inability to properly defend. If a respondent contends in the course of a disciplinary proceeding that the respondent is unable to assist in the respondent’s defense due to mental or physical incapacity, the Court shall, upon application, promptly transfer the lawyer to disability inactive status pending determination of the incapacity. If the Court determines the claim of inability to defend is valid, the disciplinary proceeding shall be stayed and the respondent retained on disability inactive status until the Court subsequently considers a petition for transfer of the respondent to active status filed by the respondent or the ODC. If the Court determines that this petition for transfer shall be granted, the Court shall also determine the disposition of the interrupted disciplinary proceedings. If the Court determines the claim of incapacity to defend to be invalid, the disciplinary proceeding shall resume and the respondent shall promptly be placed on interim suspension pending final disposition of the matter, unless the respondent can demonstrate to the Court by clear and convincing evidence that interim suspension is not appropriate. (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 by the ODC. If there are reasonable grounds to believe the interests of respondent’s clients or the public are endangered, such information shall be the subject of formal proceedings to determine whether the respondent shall be transferred to disability inactive status. The procedures and hearings shall be conducted in the same manner as disciplinary proceedings. The Board may take or direct whatever action it deems necessary or proper to determine whether the respondent is so incapacitated, including the examination of the respondent by qualified medical experts at the respondent’s expense. If, after reviewing the recommendation of the Board and upon due consideration of the matter, the Court concludes that the respondent is incapacitated from continuing to practice law, it shall enter an order transferring the respondent to disability inactive status for an indefinite period and until further order of the Court. Any pending disciplinary proceedings against the respondent shall be held in abeyance. The Board shall provide for such notice to the respondent of proceedings in the matter as it deems proper and advisable. If the respondent is not represented by counsel, the Court shall appoint counsel for the respondent. (d) Public notice of transfer to disability inactive status. The ODC may publicize any transfer to disability inactive status in the same manner as for the final imposition of public discipline. (e) Reinstatement from disability inactive status. No respondent transferred to disability inactive status may resume active status except by order of the Court. Any respondent transferred to disability inactive status shall be entitled to petition the Court for transfer to active status once a year, or at whatever shorter intervals the Court may direct in the order transferring the respondent to disability inactive status or any modification thereof. The petition may be granted by the Court upon a showing by clear and convincing evidence that the disability has been removed. Upon the filing of a petition for transfer to active status, the Court may take or direct whatever action it deems necessary or proper, including a remand to the Board for hearing and recommendation, to determine whether the disability has been removed, and may order an examination of the respondent by qualified medical experts. In its discretion, the Court may direct that the expense of the examination be paid by the respondent. The Court may also direct that the respondent establish proof of competence and learning in law, which proof may include certification by the Board of Bar Examiners of the respondent’s successful completion of an examination for admission to practice. If a respondent transferred to disability inactive status on the basis of a judicial determination of incompetence has been judicially declared to be competent, the Court may dispense with further evidence that the disability has been removed and may immediately direct reinstatement to active status upon terms as are deemed proper and advisable. (f) Waiver of doctor-patient privilege. The filing of a petition for reinstatement to active status by a respondent transferred to disability inactive status shall be deemed to constitute a waiver of any doctor- patient privilege with respect to any treatment of the respondent during the period of disability. The respondent shall disclose the name of each psychiatrist, psychologist, physician, hospital or other institution by whom or in which the respondent has been examined or treated since transfer to disability inactive status. The respondent shall furnish the Court with written consents for each doctor to divulge information and records relating to the disability if requested by the Court or Court-appointed experts. (g) Mental incompetency as a defense to misconduct. (1) Mental incompetency is a complete defense to conduct of a lawyer which would otherwise warrant disciplinary action if: A. such conduct was the result or consequence of mental incompetency; and B. the mental incompetency which was responsible for such conduct has been cured so completely that there is no reasonable basis to believe there will be a recurrence of the condition. The burden of proof of this defense is upon the respondent. (2) If the respondent is able to sustain the burden of proof as to mental incompetency at the time of the conduct that is the basis of the complaint, but is unable to prove recovery to the extent indicated in subsection (1) of this Rule, and the Board has reason to believe that such recovery is possible, the Board shall recommend to the Court that respondent be suspended until such time as the respondent can prove recovery; otherwise the Board shall recommend transfer to disability inactive status. (3) Any respondent defending on the grounds of mental incompetency shall be suspended immediately on an interim basis until and unless the respondent shall sustain the burden of proof that the respondent has been cured so completely that there is no reasonable basis to believe there will be a recurrence of the condition. Rule 20. Probation. (a) Imposition of probation. Probation may be imposed by order of the Court in any disciplinary matter where there is no reasonable basis to conclude that the respondent will harm the public or the orderly administration of justice during the period of the probation, where the conditions of probation can be adequately supervised or monitored, and where the imposition of such a sanction is otherwise appropriate. Probation and any conditions attached thereto shall continue for any period of time deemed appropriate by the Court. When conditions are imposed, probation shall not terminate until; (1) the expiration of the period established; (2) the filing with the Court of an affidavit by the respondent averring that the respondent has complied with the conditions of probation; and (3) an order of the Court that the probation has terminated. (b) Publicity. If probation is imposed along with a private sanction, the probation itself and the terms thereof shall be confidential. If probation is imposed along with a public sanction, the probation itself and the terms thereof shall be public. If probation is imposed alone, the Court shall direct whether the existence and terms thereof shall be confidential or public.