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.]
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