SCR 22.33 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

ATTORNEY MEDICAL INCAPACITY

22.34 SCR 22.34 Medical incapacity proceedings.

22.34(1) (1) An attorney's license to practice law may be suspended indefinitely or conditions may be imposed on the attorney's practice of law upon a finding that the attorney has a medical incapacity.

22.34(2) (2) The director shall investigate any matter that presents sufficient information to support an allegation of possible medical incapacity.

22.34(3) (3) The respondent shall cooperate with the investigation by providing medical releases necessary for the review of medical records relevant to the allegations.

22.34(4) (4) The investigation shall be conducted in confidence.

22.34(5) (5) The director shall prepare an investigative report and send a copy of it to the respondent. The respondent may submit to the director a written response to the investigative report within 10 days after receipt of the report.

22.34(6) (6) Upon completion of an investigation, the director may do one or more of the following:

22.34(6)(a) (a) Dismiss the matter for lack of sufficient evidence to believe the attorney has a medical incapacity.

22.34(6)(b) (b) Present the matter to the preliminary review committee for a determination that there is cause to proceed in the matter.

22.34(7) (7) The director shall submit to the preliminary review panel the investigative report, including an outline of the factual allegations and all exhibits, and the respondent's response, if any.

22.34(8) (8) If the preliminary review panel determines that the director has established cause to proceed, the director shall file a petition with the supreme court for the suspension of the respondent's license to practice law or the imposition of conditions on the respondent's practice of law. A determination of cause to proceed shall be by the affirmative vote of 4 or more members of the panel and does not constitute a finding that there is clear, satisfactory, and convincing evidence of an attorney's medical incapacity.

22.34(9) (9) The procedures under SCR 22.11 to 22.24 for a disciplinary proceeding are applicable to a medical incapacity proceeding, except as otherwise expressly provided. The office of lawyer regulation has the burden of demonstrating by clear, satisfactory and convincing evidence that the respondent has a medical incapacity.

22.34(10) (10) The petition may be accompanied by a stipulation of the director and the respondent to a suspension or to the imposition of conditions on the respondent's practice of law. The supreme court may consider the petition and stipulation without the appointment of a referee. If the supreme court approves the stipulation, it shall issue an order consistent with the stipulation. If the supreme court rejects the stipulation, the clerk of the supreme court shall select a referee from the panel provided in SCR 21.08, based on availability and geographic proximity to the respondent's place of residence, the chief justice or, in his or her absence, the senior justice shall appoint the referee, and the matter shall proceed as a petition filed without a stipulation. A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the petition.

22.34(11) (11)

22.34(11)(a) (a) An attorney who is the subject of an investigation or petition for possible medical incapacity may request the indefinite suspension of the attorney's license to practice law. The request shall state that it is filed because the petitioner cannot successfully defend against the allegations of medical incapacity. A request for suspension shall be filed with whichever of the following is applicable:

22.34(11)(a)1. 1. Prior to the filing of a petition by the director, a request for suspension shall be filed in the supreme court and include the director's summary of the medical incapacity allegations being investigated. Within 20 days after the filing of the request, the director shall file with the supreme court a response in support of or in opposition to the request.

22.34(11)(a)2. 2. After the director has filed a petition, the request for suspension shall be filed in the supreme court and served on the director and the referee to whom the matter is assigned. Within 20 days after the filing of the request, the director shall file a response in support of or in opposition to the request. The referee shall file a report and recommendation with the supreme court within 30 days after the filing of the director's response.

22.34(11)(b) (b) The supreme court shall grant the request and suspend indefinitely the attorney's license to practice law or deny the request and remand the matter to the director or to the referee for further proceedings.

22.34(12) (12) All papers, files, transcripts, communications and proceedings shall be confidential and shall remain confidential until the supreme court has issued an order revoking, suspending indefinitely, or imposing conditions on the attorney's license to practice law, except that acknowledgement that a proceeding is pending and notification to another court before which a similar petition is pending may be made when considered necessary by the director and that any publication the supreme court considers necessary may be made.

22.34(13) (13) The referee may order the examination of the respondent by qualified medical or psychological experts and may appoint counsel to represent the respondent.

22.34(15m) (15m) Following appointment of a referee, the parties shall file all papers and pleadings with the supreme court and serve a copy of those documents on the referee.

SCR 22.34 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12A, 2002 WI 8, 249 Wis. 2d xiii.

22.341 SCR 22.341 Review; appeal.

22.341(1) (1) The director, or the respondent, may file an appeal of the referee's report with the supreme court within 20 days after the report is filed.

22.341(2) (2) If no appeal is timely filed, the supreme court shall review the report of the referee and order the suspension of the respondent's license to practice law, the imposition of conditions on the respondent's practice of law, or other appropriate action. The court may order the parties to file briefs in the matter.

22.341(3) (3) An appeal from the report of a referee is conducted under the rules governing civil appeals to the supreme court. The supreme court shall place the appeal on its first assignment of cases after the briefs are filed.

SCR 22.341 History History: Sup. Ct. Order No. 01-12A, 2002 WI 8, 249 Wis. 2d xiii.

22.35 SCR 22.35 Medical incapacity determined by a court. A court finding an attorney mentally ill, drug dependent or an alcoholic under Wis. Stat. chapter 51 (1997-98) or an incompetent or spendthrift under Wis. Stat. chapter 880 (1997-98) shall immediately file a copy of the findings and order with the supreme court and the director. The supreme court shall order the attorney to show cause why the attorney's license to practice law should not be suspended by reason of medical incapacity. If cause satisfactory to the court is not shown, the court shall suspend the attorney's license to practice law for an indefinite period. The procedure set forth in this chapter for medical incapacity proceedings does not apply to this rule.

SCR 22.35 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

22.36 SCR 22.36 Reinstatement; removal of conditions.

22.36(1) (1) An attorney whose license to practice law is suspended or whose practice of law is subject to conditions for medical incapacity may petition the supreme court at any time for reinstatement of the license or the removal of conditions.

22.36(2) (2) The supreme court shall refer the petition to the director for investigation to determine whether the attorney's medical incapacity has been removed.

22.36(3) (3) The filing of a petition for reinstatement constitutes a waiver of any privilege existing between the petitioner and any psychiatrist, psychologist, physician or other health care provider that has provided care to the attorney. The petitioner shall disclose the name of every psychiatrist, psychologist, physician and other health care provider that has provided care following suspension or the imposition of conditions and shall furnish the director written consent to the release of information and records requested by the medical experts appointed by the director or a referee.

22.36(4) (4) The director may direct a medical or psychological examination of the petitioner by such qualified experts as the director designates and may direct that the expense of the examination be paid by the petitioner.

22.36(5) (5) Following the investigation, the petition shall be submitted to a referee selected by the clerk of the supreme court, based on geographic proximity to the respondent's place of residence, and appointed by the chief justice or, in his or her absence, the senior justice.

22.36(6) (6) The petitioner has the burden of showing by clear, satisfactory and convincing evidence that the medical incapacity has been removed and that the petitioner is fit to resume the practice of law, with or without conditions.

22.36(7) (7) The referee shall hold a hearing on the petition, if necessary, and file a report and recommendation in the supreme court.

22.36(8) (8) If an attorney whose license to practice law has been suspended for medical incapacity pursuant to SCR 22.35 is thereafter judicially declared to be no longer in the condition previously determined under Wis. Stat. chapter 51 or chapter 880 (1997-98), the supreme court may direct reinstatement of the attorney's license, with or without conditions.

SCR 22.36 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12A, 2002 WI 8, 249 Wis. 2d xiii.

GENERAL PROVISIONS

22.37 SCR 22.37 Time limitations. Time limitations set forth in this chapter are directory and not jurisdictional except as otherwise provided in SCR chapter 21 and this chapter.

SCR 22.37 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

22.38 SCR 22.38 Standard of proof. Allegations of misconduct in a complaint, allegations of medical incapacity in a petition, and character and fitness to practice law shall be established by evidence that is clear, satisfactory and convincing.

SCR 22.38 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

22.39 SCR 22.39 Burden of proof. The director, or a special investigator acting under SCR 22.25, has the burden of proof in proceedings seeking discipline for misconduct or license suspension or the imposition of conditions for medical incapacity. In proceedings seeking license reinstatement, readmission to the practice of law, removal of a medical incapacity, removal of conditions imposed on the practice of law, and discipline different from that imposed in another jurisdiction, the proponent has the burden of proof.

SCR 22.39 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12A, 2002 WI 8, 249 Wis. 2d xiii.

22.40 SCR 22.40 Confidentiality.

22.40(1) (1) Prior to the filing of a misconduct complaint, medical incapacity petition, or petition for temporary license suspension, all papers, files, transcripts, and communications in any matter involving the office of lawyer regulation are to be held in confidence by the director and staff of the office of lawyer regulation, the members of the district committees, special investigators, the members of the special preliminary review panel, and the members of the preliminary review committee. Following the filing of a complaint or petition, the proceeding and all papers filed in it are public, except where expressly provided otherwise in this chapter or by law.

22.40(2) (2) The director may provide relevant information to the respondent, to the grievant, to an appropriate authority for the appointment of judges, to other attorney or judicial disciplinary agencies, to other jurisdictions investigating qualifications for admission to practice, and to law enforcement agencies investigating qualifications for government employment. The supreme court may authorize the release of confidential information to other persons or agencies.

22.40(3) (3) The director may provide relevant information to a district attorney or U.S. attorney where there is substantial evidence of an attorney's possible criminal conduct.

22.40(4) (4) If there is publicity concerning the fact that an attorney is the subject of an investigation or disciplinary or medical incapacity proceeding, the director may issue an explanatory statement. If there is publicity concerning alleged misconduct or medical incapacity of an attorney and it is determined that there is no basis for further proceedings and there is no recommendation of discipline, the director may issue an explanatory statement.

22.40(5) (5) In order to provide guidance to the bar, the director may provide the state bar of Wisconsin a summary of facts and violations of the rules of professional conduct for attorneys in a matter in which a private reprimand has been imposed. The summary shall be published in an official publication of the state bar of Wisconsin but may not disclose information identifying the attorney reprimanded.

22.40(6) (6) The director may provide relevant information to the supreme court when seeking the temporary suspension of an attorney's license.

22.40(7) (7) The director may provide relevant information to a state bar lawyer assistance program when making a referral pursuant to SCR 21.03 (9).

SCR 22.40 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12, 2001 WI 120, filed and eff. 11-14-01; Sup. Ct. Order No. 01-12A, 2002 WI 8, 249 Wis. 2d xiii; Sup. Ct. Order No. 03-01, 2003 WI 133, 264 Wis. 2d xiii; Sup. Ct. Order No. 08-28, 2010 WI 36, 323 Wis. 2d xiii.

22.41 SCR 22.41 Pending litigation. Neither the director nor a referee may defer, except for cause, a matter or proceeding because of substantial similarity to the material allegations of pending criminal or civil litigation.

SCR 22.41 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

22.42 SCR 22.42 Subpoena.

22.42(1) (1) In any matter under investigation, the director, district committee, or a special investigator acting under SCR 22.25, may require the attendance of lawyers and witnesses and the production of documentary evidence. A subpoena issued in connection with a confidential investigation must so indicate on its face. It is not a breach of confidentiality for a person subpoenaed to consult with an attorney.

22.42(2) (2) In any disciplinary proceeding before a referee, the director, the director's counsel, a special investigator acting under SCR 22.25, and the respondent or counsel for the respondent may require the attendance of witnesses and the production of documentary evidence. The use of subpoenas for discovery in a matter pending before a referee shall be pursuant to an order of the referee. The service, enforcement, or challenge to any subpoena issued under this rule shall be governed by ch. 885, stats., except as otherwise provided in this chapter.

22.42(2m) (2m)

22.42(2m)(a) (a) The director may issue a subpoena under this chapter to compel the attendance of witnesses and the production of documents in Wisconsin, or elsewhere as agreed by the witnesses, if a subpoena is sought in Wisconsin under the law of another jurisdiction for use in a lawyer discipline or disability investigation or proceeding in that jurisdiction, and the application for issuance of the subpoena has been approved or authorized under the law of that jurisdiction.

22.42(2m)(b) (b) In a lawyer discipline or disability investigation or proceeding in this jurisdiction, the director, special investigator, or respondent may apply for the issuance of a subpoena in another jurisdiction, under the rules of that jurisdiction when the application is in aid or defense of the investigation or proceeding, and the director, special investigator, or respondent could issue compulsory process or obtain formal prehearing discovery under this chapter.

22.42(3) (3) A referee may enforce the attendance of a witness and the production of documentary evidence.

22.42(4) (4) The referee shall rule on a challenge to the validity of a subpoena. If a referee has not been assigned to the matter, a challenge to a subpoena issued by the director shall be filed with the supreme court together with a petition for the appointment of a referee to rule on the challenge.

22.42(5) (5) Subpoena and witness fees and mileage are allowable and paid as provided in Wis. Stat. ss. 885.05 and 885.06 (2). A witness subpoenaed during an investigation shall be paid subpoena fees and mileage by the person requesting the subpoena. A witness subpoenaed to appear at a disciplinary or medical incapacity hearing before the referee shall be paid subpoena fees and mileage by the party on whose behalf the witness appears.

SCR 22.42 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix; Sup. Ct. Order No. 01-12, 2001 WI 120, 247 Wis. 2d xiii; Sup. Ct. Order No. 01-12A, 2002 WI 8, 249 Wis. 2d xiii; Sup. Ct. Order No. 03-01, 2003 WI 133, 264 Wis. 2d xiii.

22.43 SCR 22.43 Cooperation of district attorney. Upon request, a district attorney shall assist and provide relevant information to the director in the investigation of possible attorney misconduct.

SCR 22.43 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

22.44 SCR 22.44 Retention of records. Records of all matters in which a complaint or petition is filed with the supreme court or in which discipline is imposed shall be retained for at least 10 years. Records of all other matters shall be retained for at least three years.

SCR 22.44 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

22.45 SCR 22.45 Expungement of records.

22.45(1) (1) Records of matters that are closed without investigation or dismissed shall be expunged from the files of the office of lawyer regulation three years following the end of the year in which the closure or dismissal occurred.

22.45(2) (2) Upon written application to the board of administrative oversight, for good cause, and with written notice to the attorney and opportunity for the attorney to respond, the director may request that records that otherwise would be expunged under sub. (1) be retained for such additional period not to exceed three years as the board considers appropriate. The director may request further extensions of the period of retention when a previous request has been granted.

22.45(3) (3) The attorney who was the subject of a matter or proceeding commenced under this chapter shall be given prompt written notice of the expungement of the record of the matter or proceeding.

22.45(4) (4) The effect of expungement is that the matter or proceeding shall be considered never to have been commenced. In response to a general or specific inquiry concerning the existence of a matter or proceeding the record of which has been expunged, the director shall state that no record of the matter or proceeding exists. In response to an inquiry about a specific matter or proceeding the record of which has been expunged, the attorney who was the subject of the matter or proceeding may state that the matter or proceeding was closed or dismissed and that the record of the matter or proceeding was expunged pursuant to this rule. No further response to an inquiry into the nature or scope of a matter or proceeding the record of which has been expunged need be made by the director or by the attorney.

SCR 22.45 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

CHARACTER AND FITNESS INVESTIGATIONS

22.46 SCR 22.46 Character and fitness investigations of bar admission applicants.

22.46(1) (1) Upon request of the board of bar examiners, the director shall investigate the character and fitness of an applicant for admission to the bar.

22.46(2) (2) In the investigation, the applicant shall make a full and fair disclosure of all facts and circumstances pertaining to questions involving the applicant's character and fitness. Failure to provide information or misrepresentation in a disclosure constitutes grounds for denial of admission.

SCR 22.46 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

22.47 SCR 22.47 Investigative Report. The director shall report the result of each investigation to the board of bar examiners.

SCR 22.47 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.

22.48 SCR 22.48 Costs. The director may assess all or part of the costs of the investigation against the applicant. The director may waive payment of costs in any case in which to do otherwise would result in hardship or injustice.

SCR 22.48 History History: Sup. Ct. Order No. 99-03, 2000 WI 106, 237 Wis. 2d xix.