Rule 1:20-12. Incapacity and Disability

(a) Disability Inactive Status; Effect of Judicial Determination of Mental Incapacity or on Involuntary Commitment. When an attorney who is admitted to practice in this state has been judicially declared mentally incapacitated or involuntarily committed to a mental hospital, the Supreme Court, on proof of the fact, shall enter an order transferring the attorney to disability inactive status, effective immediately and until further order of the Court. Such transfer shall stay any pending disciplinary proceedings. When an attorney who has been transferred to disability inactive status is thereafter, in proceedings duly taken, judicially declared to be competent, the Court may dispense with the need for further evidence that the disability has been removed and may direct reinstatement on such terms as are deemed proper and advisable. Any judge sitting in a court in this state who declares an attorney admitted to practice in this state mentally incapacitated, or who commits such attorney to a mental hospital, or who thereafter declares the attorney to be competent shall, on entry of the final order, promptly forward a copy to the Director.

(b) Request for Medical Examination Whenever the Director presents evidence which reasonably brings into question the capacity of an attorney to practice law, whether by reason of mental or physical infirmity or illness, or because of addiction to drugs or intoxicants, the Board shall direct that the attorney submit to such medical examination as may be appropriate to enable the Director to determine whether the attorney is so incapacitated. Such action shall be taken on an expedited basis. Thereafter the Director may request the Board to recommend to the Supreme Court that the attorney be immediately transferred to Disability Inactive Status. If the Board concludes that the attorney lacks the capacity to practice law, it shall forthwith recommend to the Supreme Court that the attorney be transferred to disability inactive status until the further order of the Court. No pending disciplinary proceeding against the attorney shall be held in abeyance unless the Court shall additionally find that the respondent is incapable of assisting counsel in defense of any ethics proceedings.

(c) Assignment of Counsel; Notice of Proceedings Either the Court or the Board may order the assignment of counsel for an attorney during any proceeding under this rule if it is in the interest of justice to do so. A copy of all applications and orders made pursuant to this rule shall be served on the attorney or counsel, any guardian, or the director of any institution to which the attorney has been committed.

(d) Proceedings to Determine Incapacity Information relating to an attorney's physical or mental condition that adversely affects the capacity to practice law may be investigated and, where warranted, shall be the subject of a hearing to determine whether the attorney shall be transferred to disability inactive status. In conjunction with any such investigation the Director may also request the Board to direct the attorney to submit to an appropriate medical examination. All proceedings and any formal hearing shall be conducted in the same manner as disciplinary proceedings. The issue before the hearing panel or special ethics master, the Board and the Court shall be whether the attorney lacks the capacity to practice law. If on due consideration of the matter the Court concludes that the attorney lacks the capacity to practice law, it shall enter an order transferring the attorney to disability inactive status for an indefinite period and until the further order of the Court.

(e) Inability to Properly Defend If, during the course of a disciplinary proceeding, the respondent is unable to assist counsel in defense of the matter due to mental or physical incapacity, the Court shall immediately transfer the respondent to disability inactive status pending determination of the incapacity. If the Court determines that the attorney is unable to defend against the charges or complaint because of mental or physical incapacity, the disciplinary proceeding shall be deferred and the respondent retained on "disability inactive" status until the Court subsequently considers a petition for restoration of the respondent to active status. On application of the Director, the Court may also make such order for the perpetuation of testimony in the disciplinary proceedings as may be appropriate. If the Court considering a petition for restoration determines to grant the petition, any deferred disciplinary proceedings shall be reactivated. If the Court determines that the attorney is able to defend against the charges or complaint, the disciplinary proceeding shall resume.

(f) Transfer to Active Status on Termination of Disability Any attorney transferred to disability inactive status under the provisions of this rule shall be ineligible to practice law and shall comply with R. 1:20-20 governing suspended attorneys. Such attorney may apply for transfer to active status on notice to the Director. No such attorney shall be eligible to practice law until transferred to active status by order of the Supreme Court. Such application may be granted by the Court or referred by the Court for hearing in accordance with paragraph (d) above.

(g) Burden of Proof In a proceeding seeking an order of transfer to disability inactive status, the burden of proof by clear and convincing evidence shall rest with the petitioner. In a proceeding seeking an order revoking the disability inactive status, the burden of proof by clear and convincing evidence shall rest with the attorney.

(h) Waiver of Doctor-Patient Privilege Either the filing of an application by an attorney for transfer to disability inactive status or the filing of an application by an attorney for transfer from disability inactive to active status shall be deemed to constitute a waiver of any doctor-patient privilege. The attorney shall be required to disclose the name of every psychiatrist, psychologist, physician and hospital or other institution or facility by whom or at which the attorney has been examined, evaluated or treated. The attorney shall furnish to the Director written consent to the release of such information and records as requested.