Monday, September 13, 2010

Asserting Disability Issues In Pennsylvania Bar Discipline

From the web page of the Pennsylvania Disciplinary Board:

The Disciplinary Board is publishing changes to Rule 301(e) of the Pennsylvania Rules of Disciplinary Enforcement, which deals with attorneys who assert mental disability defenses in disciplinary hearings.

The current Rule 301(e) does not require the attorney to identify the condition causing the claimed disability, or provide proof of a causal connection between the condition and the attorney’s ability to adequately defend against the charges in the pending disciplinary proceeding. The attorney only needs to sign a certificate of admission of disability and file the certificate with the Supreme Court, which automatically transfers the attorney to disability inactive status. This places all disciplinary proceedings in abeyance until the attorney is found able to provide a defense.

The revisions will require the attorney asserting a mental disability defense to file a certificate with the Supreme Court identifying the precise nature of the disability; the date of the onset or initial diagnosis of the disability; and an explanation of the manner in which the disability makes it impossible for the respondent to prepare an adequate defense. The attorney must append to the certificate an opinion of at least one medical expert stating that the respondent is unable to prepare an adequate defense including the basis for the medical expert’s opinion. The Supreme Court may deny the application or take other action, including the option of ordering an examination of the attorney by medical experts, at the attorney’s expense. The attorney would be placed on inactive disability status pending the Court’s determination. The order transferring the attorney to that status would be a public order, but the certificate and evidence in support of it would not be available to the public.

The Notice of Proposed Rulemaking will be published in the Pennsylvania Bulletin on September 4, 2010. Comments will be accepted until October 1, 2010. The text of the Notice may be viewed here.

(mike Frisch)

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