ELC 8.3
  DISABILITY PROCEEDINGS DURING THE COURSE OF DISCIPLINARY
                         PROCEEDINGS


(a) Supplemental Proceedings on Capacity To Defend.  A
hearing officer or hearing panel, or chief hearing officer
if no hearing officer has been appointed, must order a
supplemental proceeding on the respondent lawyer’s capacity
to defend the disciplinary proceedings if the respondent
asserts, or there is reasonable cause to believe, that the
respondent is incapable of properly defending the
disciplinary proceeding because of mental or physical
incapacity.

(b) Purpose of Supplemental Proceedings.  In a supplemental
proceeding, the hearing officer or panel determines if the
respondent:

  (1) is incapable of defending himself or herself in
     the disciplinary proceedings because of mental or
     physical incapacity;

  (2) is incapable, because of mental or physical
     incapacity, of defending against the disciplinary
     charges without the assistance of counsel; or

  (3) is currently unable to practice law because of
     mental or physical incapacity.

(c) Not Disciplinary Proceedings.  Proceedings under this
   rule are not disciplinary proceedings.

(d) Procedure for Supplemental Proceedings.

  (1) Applicable Rules.  Proceedings under this rule are
     conducted under the procedural rules for disciplinary
     proceedings.

  (2) Deferral of Disciplinary Proceedings.  The
     disciplinary proceedings are deferred pending the
     outcome of the supplemental proceeding.

  (3) Appointment of Counsel.  If counsel for the
     respondent does not appear within 20 days of notice to
     the respondent of the issues to be considered in a
     supplemental proceeding under this rule, or within the
     time for filing an answer, the Chair must appoint a
     member of the Association as counsel for the respondent
     in the supplemental proceedings.

  (4) Health Records.  Disciplinary counsel may require
     the respondent to furnish written releases and
     authorizations for medical, psychological, or
     psychiatric records as may be relevant to the
     determination under section (b), subject to a motion to
     the hearing officer to limit the scope of the requested
     releases or authorizations for good cause.  If the
     respondent asserted incapacity, there is a rebuttable
     presumption that good cause does not exist.

  (5) Examination.  Upon motion, the 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 the determinations to be
     made under section (b).  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.

  (6) Failure To Appear or Cooperate.  If the respondent
     fails to appear for an independent examination, fails
     to waive health care provider-patient privilege as
     required in these rules, or fails to appear at the
     hearing, the following procedures apply:

     (A) If the Association has the burden of proof, the
         hearing officer must hold a hearing and, if
         presented with sufficient evidence to determine
         incapacity, order the respondent transferred to
         disability inactive status.  If there is
         insufficient evidence to determine incapacity, the
         hearing officer must enter an order terminating the
         supplemental proceedings and reinstating the
         disciplinary proceedings.  A respondent who does
         not appear at the hearing may move to vacate the
         order of transfer under rule 10.6(c).

     (B) If the respondent has the burden of proof, the
         hearing officer must enter an order terminating the
         supplemental proceedings and resuming the
         disciplinary proceedings.

  (7) Hearing Officer Decision.

     (A) Capacity To Defend and Practice Law.  If the
         hearing officer or panel finds that the respondent
         is capable of defending himself or herself and has
         the mental and physical capacity to practice law,
         the disciplinary proceedings resume.

     (B) Capacity To Defend with Counsel.  If the hearing
         officer or panel finds that the respondent is not
         capable of defending himself or herself in the
         disciplinary proceedings but is capable of
         adequately assisting counsel in the defense, the
         supplemental proceedings are dismissed and the
         disciplinary proceedings resume.  If counsel does
         not appear on behalf of the respondent within 20
         days of service of the hearing officer’s decision,
         the Chair must appoint a member of the Association
         as counsel for the respondent in the disciplinary
         proceeding.

     (C) Finding of Incapacity.  If the hearing officer or
         panel finds that the respondent either does not
         have the mental or physical capacity to practice
         law, or is incapable of assisting counsel in
         properly defending a disciplinary proceeding
         because of mental or physical incapacity, the
         hearing officer or panel must recommend that the
         respondent be transferred to disability inactive
         status.  The procedures for appeal and review of
         suspension recommendations apply to recommendations
         for transfer to disability inactive status.

  (8)    Transfer Following Board Review.

     (A) The Board must enter an order immediately
         transferring the respondent to disability inactive
         status if after review of a hearing officer’s or
         panel’s recommendation of transfer to disability
         inactive status, the Board finds that the
         respondent:

        (i) does not have the mental or physical capacity
            to practice law; or

        (ii) is incapable of assisting counsel in
             properly defending a disciplinary proceeding
             because of mental or physical incapacity.

     (B) The transfer is effective upon service of the order
         on the respondent under rule 4.1.

(e) Interim Suspension.  When supplemental proceedings have
been ordered, disciplinary counsel must petition the Supreme
Court for the respondent’s interim suspension under rule
7.2(a)(1) or seek automatic suspension under rule 7.3 unless
the respondent is already suspended on an interim basis.


[Adopted effective October 1, 2002.]