ELC 8.2 DETERMINATION OF INCAPACITY TO PRACTICE LAW (a) Review Committee May Order Hearing. Disciplinary counsel reports to a review committee on investigations into an active, suspended, or inactive respondent lawyer’s mental or physical capacity to practice law. The committee orders a hearing if it appears there is reasonable cause to believe that the respondent does not have the mental or physical capacity to practice law. In other cases, the committee may direct further investigation as appears appropriate or dismiss the matter. (b) Not Disciplinary Proceedings. Proceedings under this rule are not disciplinary proceedings. (c) Procedure. (1) Applicable Rules. Proceedings under this rule are conducted under the procedural rules for disciplinary proceedings. (2) Appointment of Counsel. If counsel for the respondent does not appear within the time for filing an answer, the Chair must appoint a member of the Association as counsel for the respondent. (3) Health Records. After a review committee orders a hearing under this rule, disciplinary counsel may require the respondent to furnish written releases and authorizations for medical, psychological, or psychiatric records as may be relevant to the inquiry, subject to a motion to the hearing officer, or if no hearing officer has been appointed, to the chief hearing officer, to limit the scope of the requested releases or authorizations for good cause. (4) Examination. Upon motion, the hearing officer, or if no hearing officer has been appointed, the chief hearing officer, may order an examination by a physician of the respondent’s physical condition or by a mental health professional (as defined by RCW 71.05.020) of the respondent’s mental condition to assist in determining the respondent’s capacity to practice law. Unless waived by the parties, the examiner must submit a report of the examination, including the results of any tests administered and any diagnosis, to the hearing officer, disciplinary counsel, and the respondent. (5) Hearing Officer Recommendation. If the hearing officer or panel finds that the respondent does not have the mental or physical capacity to practice law, the hearing officer or panel must recommend that the respondent be transferred to disability inactive status. (6) Appeal Procedure. The procedures for appeal and review of suspension recommendations apply to recommendations for transfer to disability inactive status. (7) Transfer Following Board Review. If, after review of the decision of the hearing officer or panel, the Board finds that the respondent does not have the mental or physical capacity to practice law, it must enter an order immediately transferring the respondent to disability inactive status. The transfer is effective upon service of the order under rule 4.1. (d) Interim Suspension. (1) When a review committee orders a hearing on the capacity of a respondent to practice law, disciplinary counsel must petition the Supreme Court for the respondent’s interim suspension under rule 7.2(a) unless the respondent is already suspended on an interim basis. (2) Even if the Court previously denied a petition for interim suspension under subsection (d)(1), disciplinary counsel may petition the Court for the interim suspension of a respondent under rule 7.2(a)(3) if the respondent fails: (A)to appear for an independent examination under this rule; (B)to waive health care provider-patient privilege as required by this rule; or (C)to appear at a hearing under this rule. (e) Termination of Interim Suspension. If the hearing officer or panel files a decision recommending that a respondent placed on interim suspension under this rule not be transferred to disability inactive status, upon either party’s petition, the Court may terminate the interim suspension. [Adopted effective October 1, 2002.]
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