Virginia Lawyer

VaLawyer_Apr 2014

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LAWYERS HELPING LAWYERS | Vol. 62 | April 2014 | VIRGINIA LAWYER 23 Rules of the Supreme Court of Virginia, Pt. 6, § IV, ¶ 13-23 Impairment Proceedings 1 are governed by the Rules of the Supreme Court of Virginia, Part 6, § IV, ¶ 13-23, which is read- ily accessible on the Virginia State Bar website. Virginia State Bar Disciplinary Board Impairment Proceedings lie under the jurisdiction of the Virginia State Bar Disciplinary Board. Closed Proceedings Unlike misconduct cases, Impairment Proceedings are not open to the public. 2 Impairment Investigation In the interest of public protection, upon receipt of notice or evidence that an attorney may have an Impairment defined as "any physical or mental condition that materially impairs the fitness of an Attorney to practice law," 3 bar counsel shall inves- tigate the matter. Upon notice to the attorney and for good cause shown, bar counsel may petition the board to order the attorney to undergo a medical examination by qualified physicians or health care providers and to authorize releases of medical records for use in the investigation and any subsequent Impairment Proceedings. The board shall hold a hearing to determine whether to order the examination and/or releases. 4 Enforcement of Board's Orders in Impairment Proceeding The board may sanction an attorney for failure to comply with its orders and subpoenae issued in connection with an Impairment Proceeding. The board can summarily suspend an attorney's license for such failure to comply if it is deter- mined that the public and/or clients are in jeopardy, and the sanction can be sua sponte or on motion by bar counsel, with appropriate notice to the attorney and his/her counsel or guardian ad litem. 5 Impairment Hearings If bar counsel determines there is reason to believe that an attorney suffers from an Impairment, bar counsel shall petition the board to suspend indefinitely the attorney's license to prac- tice law due to Impairment. 6 Bar counsel shall serve the peti- tion on the attorney. The board shall promptly hold a hearing to determine whether an Impairment exists. 7 The notice of the hearing shall order the attorney to advise the board as to whether he or she will be represented by counsel at the hearing. If no counsel enters an appearance within ten days of the notice of hearing, the board shall appoint a guardian ad litem to represent the attorney at the hearing. 8 Impairment hearings shall be conducted substantially as misconduct hearings, except that the public and witnesses, other than the attorney and any complainant, shall be excluded, unless testifying, from the impairment hearing. 9 The board may consider as evidence written reports of any medical examination and/or written reports of health care providers who have examined the attorney. The reports shall be filed with the clerk of the disciplinary system, 10 and such reports are confidential. The burden of proof lies with the party asserting the Impairment. In a proceeding to suspend an attorney for Impairment, the burden of proof lies with bar counsel. 11 If the board determines an impairment exists, it shall enter an order of suspension, which is indefinite in duration. 12 Summary Suspension The board shall summarily suspend an attorney's license when the clerk of the disciplinary system provides the board with notice and supporting documentary evidence that the attorney has been adjudicated as Impaired by a court of competent juris- diction or when an attorney has been involuntarily committed to a hospital for treatment of any addiction, inebriety, insanity, or mental illness. 13 Termination of Impairment Suspension An attorney whose license has been suspended due to an Impairment may seek termination of the suspension by prov- ing to the board that the Impairment no longer exists. 14 The board shall hold a hearing at which the attorney will bear the burden of proof that he or she is no longer impaired. 15 If the impairment suspension was based on an adjudication of an Impairment by a court of competent jurisdiction, and a court of competent jurisdiction has subsequently determined that the Impairment has terminated, and the board has received documentary evidence of adjudication that the Impairment was terminated by a court of competent jurisdiction, the board shall terminate the suspension without a hearing. 16 Election of Disabled Status A Virginia attorney who suffers from a permanent disability may elect to change his or her status from active to disabled and retired. The election may be made by a written request with adequate medical and/or psychological documentation to the executive director of the VSB. All medical and psychological documentation shall remain confidential. A disabled member cannot practice law; however, the attorney may seek reinstate- ment to active status by petitioning the executive director in writing and outlining all changes in circumstances since the election to disabled status. Again, the attorney must submit adequate medical and/or psychological documentation, which Impairment Proceedings by Renu M. Brennan, assistant bar counsel, Virginia State Bar April2014VL_vl0414 4/2/14 5:24 PM Page 23

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