Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart C - DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA › Chapter 91 - MISCELLANEOUS MATTERS › Subchapter D - DISABILITY › Section 91.75 - Effect of raising defense of disability in formal and informal proceedings

Current through Register Vol. 54, No. 28, July 13, 2024
(a)
General rule.
Enforcement Rule 301(e) provides that if, during
					 the course of a disciplinary proceeding, the respondent contends that the
					 respondent is suffering from a disability by reason of mental or physical
					 infirmity or illness, or because of addiction to drugs or intoxicants, which
					 make it impossible for the respondent to prepare an adequate defense, the
					 respondent shall complete and file with the Court a certificate of admission of
					 disability. The certificate shall:
(1)
					 identify the precise nature of the disability and the specific or approximate
					 date of the onset or initial diagnosis of the disabling condition;
(2) contain an explanation of the manner in
					 which the disabling condition makes it impossible for the respondent to prepare
					 an adequate defense;
(3) have
					 appended thereto the opinion of at least one medical expert that the respondent
					 is unable to prepare an adequate defense and a statement containing the basis
					 for the medical expert's opinion; and
(4) contain a statement, signed by the
					 respondent, that all averments of material fact contained in the certificate
					 and attachments are true upon the respondent's knowledge or information and
					 belief and made subject to the penalties of
					 18 Pa.C.S. §
													4904 relating
					 to unsworn falsification to authorities.
The respondent may attach to the certificate affidavits,
						medical records, additional medical expert reports, official records, or other
						documents in support of the existence of the disabling condition or the
						respondent's contention of lack of physical or mental capacity to prepare an
						adequate defense.
Upon receipt of the certificate, the Supreme Court
						thereupon shall enter an order immediately transferring the respondent to
						disability inactive status until a determination is made of the capacity of the
						respondent to aid effectively in the preparation of a defense or to continue to
						practice law in a proceeding instituted in accordance with the provisions of §
													91.74 (relating to petition by
						Board for determination of professional competency), unless the Court finds
						that the certificate does not comply with the requirements of Enforcement Rule
						301(e), in which case the Court may deny the request for transfer to disability
						inactive status or enter any other appropriate order. Before or after the entry
						of the order transferring the respondent to disability inactive status under
						Enforcement Rule 301(e), the Court may, upon application by Disciplinary
						Counsel and for good cause shown, take or direct such action as the Court deems
						necessary or proper to a determination of whether it is impossible for the
						respondent to prepare an adequate defense, including a direction for an
						examination of the respondent by such qualified medical experts as the Court
						shall designate. In its discretion, the Court may direct that the expense of
						such an examination shall be paid by the respondent.
The order transferring the attorney to disability
						inactive status under Enforcement Rule 301(e) shall be a matter of public
						record. The certificate of admission of disability and attachments to the
						certificate shall not be publicly disclosed or made available for use in any
						proceeding other than a subsequent reinstatement or disciplinary proceeding
						except:
(i) upon order of the Supreme
					 Court;
(ii) pursuant to an express
					 written waiver by the attorney; or
(iii) upon a request by the Pennsylvania
					 Lawyers Fund for Client Security Board pursuant to Enforcement Rule 521(a)
					 (relating to cooperation with Disciplinary Board).
If the Court shall determine at any time that the
						respondent is able to aid effectively in the preparation of a defense or is not
						incapacitated from practicing law, it shall take such action as it deems proper
						and advisable including a direction for the resumption of the disciplinary
						proceeding against the respondent.