Mo. R. Gov. Bar Jud. 5.285

As amended through November 19, 2024

Rule 5.285 - Consideration Of Mental Disorder

(a) Definitions. For purposes of this Rule 5.285, the following terms mean:

(1) "Mental disorder" is a condition, found in the current Diagnostic and Statistical Manual, that more than minimally impairs judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments; and

(2) "Mitigation claim" is a claim that a mental disorder should be considered in mitigation of professional misconduct.

(b) Consideration of a Mental Disorder in Disciplinary Matters. A mental disorder, including, but not limited to, substance abuse or dependency, is not a defense to allegations of professional misconduct but may be considered as a mitigating factor in determining appropriate discipline. Demonstration of management of the mental disorder will be considered in determining whether to impose discipline less than that which would have been imposed upon a lawyer in similar circumstances where a mental disorder was not present, but does not in itself entitle the person to imposition of a lesser discipline. Protection of the public and the integrity of the legal profession shall be the primary issues in determining whether the person will be permitted to practice on probation pursuant to Rule 5.175 or otherwise.

(c) Asserting Claims for Mitigation. A person claiming a mental disorder as a mitigating factor shall identify the mental disorder and how it relates to the alleged professional misconduct no later than in the answer. For good cause shown, the time for claiming the mitigating factor may be extended, and an amended answer may be filed. Upon request, informant shall be given reasonable time to investigate.

(d) Records Required. A person who asserts a mitigation claim or reinstatement claim shall disclose to the Chief Disciplinary Counsel, beginning with the date the person first applied to attend law school, the name of every healthcare provider by whom and at which the person has been examined or treated related to any and all mental disorders, including, but not limited to, every psychiatrist, psychologist, professional counselor, social worker, physician, treatment center, and hospital.

The person shall furnish to the Chief Disciplinary Counsel written consent for each named person or entity to divulge information and records related to such examination, treatment, or both, to the Chief Disciplinary Counsel.

Such records shall be filed under seal and shall not be disclosed by the Chief Disciplinary Counsel, regional disciplinary committee, disciplinary hearing panel, or the Advisory Committee outside the proceeding during the course of any investigation, disciplinary hearing, or court proceeding, unless ordered otherwise by this Court.

(e) Independent Evaluation Required; Burden and Cost on Respondent. A mental disorder is not a mitigating factor in a disciplinary proceeding unless an independent, licensed mental health professional provides evidence, and the Court finds, that:

(1) The mental disorder caused or had a direct and substantial relationship to the professional misconduct;

(2) The ability to manage the mental disorder for a meaningful and sustained period of successful function; and

(3) Recurrence of the misconduct as a result of the mental disorder is unlikely.

All costs of the independent licensed mental health professional in a disciplinary proceeding shall be paid by the respondent. The respondent shall bear the burden of proof that the mental disorder is a mitigating factor.

(f) Additional Factors. The following additional factors shall be considered, to the extent relevant to a particular case:

(1) The seriousness of the misconduct;

(2) The extent to which the misconduct is attributable to the mental disorder;

(3) The extent to which the mental disorder will interfere with the ability to practice law;

(4) The results of a functional analysis of the person's abilities in light of the mental disorder;

(5) The person's other health conditions that interact with, or result in, mental health disorders or impairments;

(6) The person's prognosis including, but not limited to, the likelihood of relapse as determined by an independent evaluation;

(7) The person's history of dealing with the mental disorder;

(8) The person's ability to self-monitor the person's status in relation to the mental disorder;

(9) The level of monitoring that will be needed;

(10) The length of time monitoring will be needed;

(11) The cost of monitoring; and

(12) The likelihood the person will be able to continue to practice in a manner in which the public is protected once any period of monitoring is complete.

Mo. R. Gov. Bar Jud. 5.285

Adopted Feb. 8, 2010, eff. 2/8/2010.

Comment

Lawyers, like other human beings, are subject to very stressful life events. For example, an automobile accident, an office fire, a marriage dissolution, or the death of a loved one are all very demanding circumstances. However, the response to such situations is not what is meant here by a mental disorder. Some people may seek mental health counseling in such circumstances, but that process in and of itself does not mean reactions to such stressful events rise to the level of mental disorder. The ABA Model Standards for Imposing Lawyer Sanctions address the possible mitigating nature of these personal and emotional problems. See Rule 5.17.

Conditions that impair judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments are the issue. Conditions that are more likely to produce this type of impairment include, but are not limited to, schizophrenia and other psychotic disorders, bipolar illness types I and II, major depressive disorder, substance dependence or abuse, delirium, and dementia.

Some conditions included in the Diagnostic and Statistical Manual as conditions that may be quite serious and in need of professional treatment are outside the scope of this consideration, unless they impair judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments.

The mere presence of such a disorder, accurately diagnosed and present in a relevant timeframe, does not in and of itself call for mitigation. If such a disorder is under control through effective treatment, a lawyer so afflicted may be quite competent and professional. Such treatment is to be encouraged.