Section 91.75. Effect of raising defense of disability in formal proceedings

(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 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 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.

(b) Procedure. Whenever a respondent makes a contention within the scope of subsection (a) of this section, the respondent shall complete and file a certificate thereof with the Prothonotary of the Supreme Court by means of Form DB-21 (Certificate of Admission of Disability by Attorney). The certificate shall be available to the bar through the Office of the Secretary to the Board. The respondent shall serve a copy of the certificate on the Board and disciplinary counsel.

The provisions of this § 91.75 amended July 8, 1983, effective July 9, 1983, 13 Pa.B. 2138; amended March 10, 1989, effective March 11, 1989, 19 Pa.B. 952; amended August 6, 2011, effective immediately, 41 Pa.B. 4202. Immediately preceding text appears at serial pages (344932) to (344933).