Lawyer can be removed for illness

by Scott Drexel

Business & Professions Code §6007(b)(3) provides an effective means by which attorneys can be removed from practice if they are suffering from a mental illness or defect or cannot practice law competently due to their habitual use of drugs or alcohol.

A §6007(b)(3) proceeding is not a disciplinary proceeding, but is a regulatory proceeding aimed at protecting clients and the public from those attorneys who are unable to practice competently due to mental illness or substance abuse. Due to the sensitive nature of these proceedings, they are confidential and not open to the public.

Initiating the proceeding

The "mental competency" proceeding can be initiated only through the issuance of a Notice to Show Cause by a judge of the State Bar Court after a determination by the court that probable cause exists to believe that the member is suffering from a mental illness or impairment or that the member is unable to practice law competently due to the habitual use of drugs or alcohol.

However, the State Bar Court may either make that determination on its own motion (based on its observation of the attorney during the course of another proceeding) or as the result of a motion filed by any party.

Since this proceeding essentially involves allegations that the attorney is not mentally competent, he or she must be represented by counsel in the proceedings once the Notice to Show Cause has been filed. If the attorney is unrepresented or unable to afford counsel, the State Bar Court appoints counsel to represent the attorney at no cost to the attorney.

Pursuant to Business & Professions Code §6053, the State Bar Court may require the attorney to undergo a mental or physical examination, or both.

Undergoing examinations

If the attorney fails or refuses to comply with an order for physical or mental examination, that fact may be considered as evidence in determining whether the attorney's involuntary enrollment as an inactive member is warranted, but cannot constitute the sole basis for the inactive enrollment.

The attorney is entitled to a hearing as to whether the requirements for inactive enrollment under B&P §6007(b)(3) have been met, and may present testimonial and documentary evidence on his behalf. The Office of the Chief Trial Counsel has the burden of proving the existence of those requirements by clear and convincing evidence.

Following the hearing, the State Bar Court hearing judge must issue a written decision placing the attorney on involuntary inactive enrollment if the requirements for the enrollment have been met, or dismiss the proceeding in the absence of such evidence.

If the requirements for involuntary inactive enrollment have been met, the hearing judge may order the inactive enrollment to occur immediately. An attorney who has been placed on involuntary inactive enrollment under §6007(b)(3) may seek review of that decision by the State Bar Court review department and, thereafter, by the California Supreme Court.

Inactive status

However, unless the order of inactive enrollment has been stayed or set aside, the member remains on inactive status during the pendency of the proceeding on appeal. The attorney continues to be entitled to appointed counsel on appeal.

Once an order of involuntary inactive enrollment under §6007 (b)(3) becomes final, the attorney remains on that status until he or she can demonstrate to the court, in a separate proceeding, that the attorney no longer suffers from the condition that caused the inactive enrollment and that the attorney can practice competently and without danger to the public or the attorney's clients.

Scott Drexel is chief counsel of the State Bar Court.