RULE 27. Proceedings in which Lawyer is Determined Incapacitated

(a)      Incapacity. In any instance where an attorney has been determined to be incapacitated, including any proceeding in which (1) the attorney has been judicially declared incompetent; (2) the attorney has been acquitted of a crime by reason of mental illness; (3) the attorney has been committed to a mental health hospital after a judicial hearing; (4) the attorney has admitted herself or himself to a mental health hospital for acute care; (5) the attorney has admitted herself or himself to a substance abuse facility for extended treatment and no proxy has been appointed to protect client interests; or (6) the attorney has been placed by court order under guardianship or conservatorship, the Grievance Commission, on reference from any court or on its own motion, may, in its discretion, give the attorney the opportunity to surrender or to agree to a suspension. A Single Justice, upon Bar Counsels petition or upon its own motion, may enter an order to show cause why the attorney should not be suspended from the practice of law. A copy of such order shall be served upon the attorney, the attorney's personal representative, if any, and the director of the mental health hospital to which the attorney is committed, if any, in such manner as the Single Justice may direct.

(b)      Inability to Properly Defend. If during a disciplinary proceeding the respondent claims to be incapacitated, and the respondents incapacity makes it impossible to present an adequate defense, the Single Justice may immediately suspend the lawyer pending determination of the incapacity.

(1)   If the Single Justice determines the claim of inability to defend is valid, the disciplinary proceeding shall be deferred and the respondent retained on interim suspension until the Court subsequently considers a petition to terminate the suspension. If the Single Justice determines the petition shall be granted, the Single Justice shall also determine the disposition of the interrupted disciplinary proceedings.

(2)    If the Single Justice determines the claim of incapacity to defend to be invalid, the disciplinary proceeding shall resume and the respondent may immediately be placed on interim suspension pending the final disposition of the matter.

(c)       Proceedings Where an Attorney Is Alleged to Be Incapacitated.

(1)    Bar Counsel may, after investigation, seek a determination by a Grievance Commission panel, after hearing, that an attorney is incapacitated from continuing practice. Upon so finding, the Grievance Commission panel shall promptly petition the Court to determine whether the attorney is so incapacitated. The Chief Justice shall designate a Single Justice who, after due notice and hearing, shall issue any orders necessary or appropriate to protect the public interest, including an order suspending the attorney.

(2)    The Chair of the Board, or in the absence of the Chair, the Vice Chair, upon an application by Bar Counsel alleging such incapacity of an attorney together with an allegation that the continued practice of such attorney poses a substantial threat of irreparable harm to the public, may direct that such petition seeking the suspension of the attorney be filed directly with the Court. The Chief Justice shall designate a Single Justice who shall order such action as it deems appropriate, including an expedited hearing. The Single Justice may enter an interim order suspending the attorney pending such expedited hearing. With notice to Bar Counsel, the attorney may move for dissolution or modification of the interim order of suspension.

(d)      Reinstatement.

(1)    Generally. No respondent suspended hereunder may resume active status except by order of the Court.

(2)    Petition. Any respondent suspended hereunder shall be entitled to petition for transfer to active status once a year, or at whatever shorter intervals the Court may direct in the order of suspension or any modifications thereof.

(3)    Examination. Upon the filing of a petition for transfer to active status, the Court may take or direct whatever action it deems necessary or proper, including a direction for an examination of the respondent by qualified medical experts designated by the Court. In its discretion, the Court may direct that the expense of the examination be paid by the respondent.

(4)    Waiver of Doctor-Patient Privilege. With the filing of a petition for reinstatement to active status, the respondent shall disclose the name of each psychiatrist, psychologist (or other mental health professional), physician and hospital or other institution by whom or in which the respondent has been examined or treated since the suspension. The respondent shall furnish to the Court written consent to the release of information and records relating to the incapacity if requested by the Court or court-appointed medical experts.

(5)    Learning in Law; Bar Examination. The Court may also direct that the respondent establish proof of competence and learning in law.

         (A)    The Court may, before granting the petition, require that by a specific date the petitioner take and pass the modified bar examination (or its then equivalent) as administered by the Maine Board of Bar Examiners.

         (B)    The Court may require proof that the petitioner has met the CLE requirements of Rule 5 for each year the attorney has been inactive, withdrawn or prohibited from the practice of law in Maine, but need not complete more than 24 credit hours of approved continuing legal education for that entire period of absence from practice, provided that: (i) no more than one half of the credits are earned through self-study; (ii) at least two credit hours are primarily concerned with the issues of ethics or professional responsibility; and (iii) at least two credit hours are primarily concerned with issues of recognition and avoidance of harassment and discriminatory communication or conduct related to the practice of law.

(6)    Granting Petition for Transfer to Active Status. The Court shall grant the petition for transfer to active status upon a showing by clear and convincing evidence that the incapacity has been removed.

(7)    Judicial Declaration of Competence. If a respondent suspended on the basis of a determination of incapacity has been judicially declared to be competent, the Court may dispense with further evidence that the lawyers incapacity has been removed and may immediately direct the lawyers reinstatement to active status upon terms as are deemed proper and advisable.

Reporters Notes June 2015

Rule 27(a) is based on Model Rule 23(A) but incorporates the more substantive and detailed language and procedures of former Maine Bar Rule 7.3(e)(1). While the Model Rules contemplate that some attorneys will be transferred to disability inactive status, the committee concluded that it was unnecessary to create this new designation in Maine.

Rule 27(b) closely follows Model Rule 23(B) and former Maine Bar Rule 7.3(e)(3) concerning the lawyers claim of incapacity issues causing an inability to defend a disciplinary matter.

Rule 27(c) is a significant variant from Model Rule 23(C) concerning a determination of the lawyers capacity. The committee elected to include and continue the existing practice as contained in former Maine Bar Rule 7.3(e)(2)(A) and (B).

Rule 27(d) is partially based on Model Rule 23(E) but does not contain that sections Disability Inactive Status title heading. The committee added specific learning in law requirements in Rule 27(d)(5)(A) and (B) that are not included in Model Rule 23(E)(5). Rule 27(d) is generally in accord with former Maine Bar Rule 7.3(e)(4).

Advisory Note - May 2019

This amendment removes unnecessary subdivision references to Rule 5, increases the maximum number of CLE credits required for reinstatement from 22 to 24, and provides guidance to members of the bar with respect to the two additional credits. The amendment also eliminates the reference to in-house courses, as revised Maine Bar Rule 5 no longer contains in-house self-study language.