Rule 17-208. Incompetency or incapacity.

A. Disability inactive status. (1) In addition to or in lieu of the provisions of Rule 17-207 NMRA, where it is shown that an attorney is unable to fulfill professional responsibilities competently because of physical, mental, or emotional infirmity, impairment, incapacity, or illness, the Disciplinary Board may petition the Supreme Court to place the attorney on disability inactive status. If the Court places an attorney on disability inactive status the attorney shall not engage in the practice of law. (2) Proceedings instituted against an attorney under this paragraph are disability or incapacity proceedings, not disciplinary proceedings. Transfer to disability inactive status is not a form of discipline and does not involve a finding of a violation of the Rules of Professional Conduct. The pendency of proceedings provided for by this rule shall not defer or abate other proceedings, including disciplinary proceedings conducted under the Rules Governing Discipline, unless the Supreme Court or the Disciplinary Board determines that the attorney is unable to assist in the defense of those other proceedings because of the disability or incapacity. If such other proceedings are deferred, then the deferral shall continue until such time as the attorney is found to be eligible for reinstatement as provided in Paragraph E of this rule. B. Transfer to disability inactive status upon determination of incompetency, disability, or incapacity. When an attorney has been judicially declared incompetent or has been involuntarily committed for treatment for a mental or emotional condition, after appropriate judicial proceedings, or has been found not guilty of a crime by reason of insanity after appropriate judicial proceedings, the Supreme Court, upon receipt of a certificate and the recommendations from the Disciplinary Board so showing, may enter an order transferring such attorney to disability inactive status effective immediately and for an indefinite period until the further order of the Supreme Court. The attorney, upon request, shall be afforded an opportunity to be heard on the continuation of the disability inactive status. A copy of such order shall be served upon the attorney, the attorney’s guardian, and, if applicable, the director of the mental facility in such manner as the Supreme Court may direct. C. Procedure when a determination of incapacity is sought. Except for those situations set forth in Paragraph B of this rule, whenever the Disciplinary Board believes that an attorney is unable to fulfill professional responsibilities competently because of physical, mental, or emotional infirmity, impairment, incapacity, or illness, the Disciplinary Board may, in addition to or instead of proceeding under Rule 17-207 NMRA, petition the Supreme Court to determine whether the attorney is incapacitated from continuing the practice of law and whether the attorney should be transferred to disability inactive status. Upon receipt of such a petition, the Supreme Court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical experts as the Supreme Court may designate and an expedited hearing before the Disciplinary Board under the provisions of Paragraph E of Rule 17-314 NMRA. If, upon due consideration of the matter, the Supreme Court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order placing the attorney on disability inactive status on the ground of such disability or incapacity for an indefinite period and until the further order of the Supreme Court. Pending disciplinary proceedings against the attorney may be held in abeyance. The Supreme Court shall provide for such notice to the respondent-attorney of proceedings in the matter as is consistent with fundamental fairness and due process and may appoint an attorney to represent the respondent-attorney if the respondent-attorney is without adequate representation. D. Inability to defend self during disciplinary proceeding. If, during the course of a disciplinary proceeding, the respondent-attorney contends, or it becomes apparent to the hearing committee or the Disciplinary Board, that the respondent-attorney is incapacitated to an extent which makes it impossible for the respondent-attorney to adequately present a defense, the hearing committee or the Disciplinary Board may order that the disciplinary proceedings be suspended and the matter may proceed in accordance with Paragraph C of this rule. Alternatively or additionally, in the discretion of the Disciplinary Board, it may move the Supreme Court under Rule 17-207 NMRA to enter an order immediately suspending the respondent-attorney from continuing to practice law. If the respondent-attorney is transferred to disability inactive status, the disciplinary proceedings shall be stayed until such time as the respondent-attorney is found to be eligible for reinstatement as provided in Paragraph E of this rule. If, in the course of a proceeding under this rule and Paragraph C, the Supreme Court determines that the respondent-attorney 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-attorney. E. Reinstatement. Unless otherwise determined by the Court in the course of a disability inactive proceeding, an attorney placed on disability inactive status under the terms of this rule may apply for reinstatement in accordance with Rule 17-214(C), (D) and (E) NMRA. F. Burden of proof. In a proceeding under Paragraph C of this rule, the burden of proof by a preponderance of the evidence shall rest with the Disciplinary Board. G. Proceedings under seal. Upon the request of the Disciplinary Board or the attorney, proceedings taken under this rule may be placed under seal in the sole discretion of the Supreme Court.