Rule 243.7 - Alleged Inability to Defend Disciplinary Proceeding(a) Overview. This section 243.7 sets forth the standards and procedures that apply when an issue is raised under C.R.C.P. 242.28 as to whether a respondent is able to defend a pending disciplinary proceeding. The Presiding Disciplinary Judge may initially direct the respondent to undergo an independent medical examination and may issue an interim stay of the disciplinary proceeding. Then, after considering all relevant information, the Presiding Disciplinary Judge may place a disciplinary proceeding in abeyance as provided below.(b) Standard. A respondent is deemed unable to defend a disciplinary proceeding if the respondent has a medical, mental, or cognitive condition that renders the respondent unable to prepare or present a defense.(c) Initiation. (1) Under C.R.C.P. 242.28, the respondent, the respondent's counsel, the Presiding Disciplinary Judge, or the Regulation Counsel may raise an issue as to the respondent's ability to defend the proceeding.(2) If the issue of inability to defend is raised as to a respondent who is unrepresented, the Presiding Disciplinary Judge may, in the Presiding Disciplinary Judge's discretion, appoint counsel to represent the respondent in a proceeding under this section 243.7 to determine whether the respondent is able to defend the disciplinary proceeding.(d) Procedure. Depending on the entity raising the issue, the following procedures apply, subject to the Presiding Disciplinary Judge's discretion to adopt a different procedure: (1) By Respondent. If a respondent or respondent's counsel alleges that the respondent is unable to defend a disciplinary proceeding:(A) The Presiding Disciplinary Judge will direct the respondent to undergo an independent medical examination on the issues of whether the respondent is able to defend the disciplinary proceeding and to competently fulfill professional responsibilities;(B) The Presiding Disciplinary Judge will issue an interim stay of the disciplinary proceeding under C.R.C.P. 242.28, which the Presiding Disciplinary Judge may subsequently lift on a showing of good cause;(C) The Presiding Disciplinary Judge will treat a respondent's allegation of inability to defend as a waiver of the physician-patient and psychologist-client privileges under C.R.S. section 13-90-107(d) and (g) between the lawyer and any professional who has examined or treated the lawyer for any condition related to the alleged inability to defend; and(D) The Presiding Disciplinary Judge will treat the allegation as a stipulation to the respondent's transfer to disability inactive status and will transfer the respondent to disability inactive status under C.R.C.P. 243.6(a)(5)(A).(2) By Presiding Disciplinary Judge. If the Presiding Disciplinary Judge believes the respondent may be unable to defend a disciplinary proceeding, the Presiding Disciplinary Judge will follow the procedures set forth in subsections (d)(1)(A)-(B) above.(3) By Regulation Counsel. If the Regulation Counsel moves to place a disciplinary proceeding in abeyance due to the respondent's inability to defend the disciplinary proceeding, where the respondent has already been transferred to disability inactive status, the Presiding Disciplinary Judge may grant the request without requiring the Regulation Counsel to provide proof or information about the disability in question.(e) Hearings. The Presiding Disciplinary Judge has discretion to hold a hearing to address any issue in a proceeding under this section 243.7. The clerk of the Presiding Disciplinary Judge may issue subpoenas under C.R.C.P. 45. Hearings are conducted by the Presiding Disciplinary Judge, sitting without a Hearing Board. Except as otherwise provided in this rule, proceedings under this section must be conducted in accordance with the Colorado Rules of Civil Procedure and civil trial practice in this state. The Presiding Disciplinary Judge may receive any evidence with probative value regardless of its admissibility under the rules of evidence if the respondent has a fair opportunity to rebut hearsay evidence.(f) Decision. After reviewing the report of an independent medical examination and any other relevant information, and after holding any hearing the Presiding Disciplinary Judge deems necessary, the Presiding Disciplinary Judge will, in the Presiding Disciplinary Judge's discretion, take one or more of the following actions: (1) Transfer the respondent to disability inactive status under C.R.C.P. 243.6(a)(5) and place the disciplinary proceeding in abeyance under C.R.C.P. 242.28, if the Presiding Disciplinary Judge finds it is more likely than not that the respondent is unable to defend the proceeding or finds that justice otherwise so requires;(2) Lift the interim stay on the disciplinary proceeding and order under C.R.C.P. 242.28 that the proceeding go forward with or without also transferring the respondent to disability inactive status under C.R.C.P. 243.6(a)(5); or(3) Enter any other appropriate order, including an order directing further examination of the respondent, an order continuing the disciplinary proceeding, or an order immediately reinstating the respondent from disability inactive status without following the procedures set forth in C.R.C.P. 243.10(b).(g) Subsequent Removal of Proceeding from Abeyance.(1) If the respondent is subsequently reinstated from disability inactive status under C.R.C.P. 243.10, the Presiding Disciplinary Judge will remove the respondent's disciplinary proceeding from abeyance under C.R.C.P. 242.28.(2) If the respondent has not been reinstated from disability inactive status under C.R.C.P. 243.10, the Presiding Disciplinary Judge may, in the Presiding Disciplinary Judge's discretion, remove a disciplinary proceeding from abeyance under C.R.C.P. 242.28 if: (A) A preponderance of the evidence establishes that the respondent is able to defend the proceeding; or(B) The Presiding Disciplinary Judge otherwise determines that justice so requires.(h) Confidentiality. An order transferring a lawyer to disability inactive status is available to the public. Otherwise, disability proceedings, files, and records are not public, except by order of the supreme court or the Presiding Disciplinary Judge. All entities described in this rule and all individuals working or volunteering on behalf of those entities have an ongoing duty to maintain the confidentiality mandated by this rule. But the Regulation Counsel may disclose any information reasonably necessary either to correct false or misleading public statements made during a disability proceeding or to defend against litigation in which the Regulation Counsel is a named defendant. A lawyer may release information arising from the lawyer's own disability proceeding or authorize the Regulation Counsel to release such information, unless the information is made confidential by rule or order.(i) Costs and Fees. The Presiding Disciplinary Judge, in the Presiding Disciplinary Judge's discretion, may order the respondent to pay all or any part of the costs arising under this section 243.7, including examination costs. Fees for appointed counsel may be paid by the Office of the Presiding Disciplinary Judge, and the Presiding Disciplinary Judge may condition reinstatement from disability inactive status on reimbursement of all or any part of those fees. Fees for appointed counsel are subject to payment caps as established by judicial policy governing analogous proceedings.(j) Automatic Abeyance and Removal of Proceeding from Abeyance. If a respondent in a pending disciplinary proceeding has been transferred to disability inactive status under C.R.C.P. 243.6(a)(3), the Regulation Counsel must request that the Presiding Disciplinary Judge place a pending disciplinary proceeding in abeyance under C.R.C.P. 242.28. The Presiding Disciplinary Judge will grant a proper request. The Presiding Disciplinary Judge will remove the disciplinary proceeding from abeyance under C.R.C.P. 242.28 if the respondent is reinstated from disability inactive status.Adopted by the Court, En Banc, May 20, 2021, effective 7/1/2021.