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.]