CO · rules

C.R.C.P. 243.6

Transfer to Disability Inactive Status

activein force · 2021-07-01 – presentact-effective-date

(a) Procedure and Determination.

(1) Petition Filed by Regulation Counsel.

(A) Petition. If the Regulation Counsel has reason to believe that a lawyer is disabled,

the Regulation Counsel may file a petition with the Presiding Disciplinary Judge alleging

that the lawyer is disabled and requesting an order requiring the lawyer to undergo an

independent medical examination or an order transferring the lawyer to disability inactive

status. The Regulation Counsel must promptly serve on the lawyer a copy of the petition

and file with the Presiding Disciplinary Judge proof of service.

(B) Show Cause Order. Unless the Regulation Counsel files an affidavit setting forth

facts that clearly and convincingly show the lawyer is unable to respond, the Presiding

Disciplinary Judge must afford the lawyer an opportunity to show cause in writing why the

requested relief should not be granted.

Judge may issue appropriate orders, such as ordering an independent medical examination

of the lawyer by a qualified examiner designated by the Presiding Disciplinary Judge. If

the Presiding Disciplinary Judge finds clear and convincing evidence that the lawyer is

disabled, the Presiding Disciplinary Judge will transfer the lawyer to disability inactive

status.

(2) Petition Premised on Reciprocal Disability.

(A) Duty to Notify. A lawyer who is transferred to disability inactive status in another

jurisdiction must promptly inform the Regulation Counsel of the transfer.

(B) Petition. On learning that a lawyer has been transferred to disability inactive status

in another jurisdiction, the Regulation Counsel may file with the Presiding Disciplinary

Judge a certified copy of the order, accompanied by a petition for the lawyer’s transfer to

disability inactive status. The Regulation Counsel must promptly serve on the lawyer a

copy of the petition and file with the Presiding Disciplinary Judge proof of service.

facts that clearly and convincingly show the lawyer is unable to respond, the Presiding

Disciplinary Judge must afford the lawyer an opportunity to show cause in writing why

reciprocal transfer to disability inactive status should not be ordered.

(D) Answer. To contest transfer to disability inactive status, the lawyer must file with

the Presiding Disciplinary Judge an answer asserting at least one of the defenses in

subsection (E) below and a full copy of the record of the disability proceeding in the other

jurisdiction.

(E) Determination. The Presiding Disciplinary Judge will order the lawyer’s transfer to

disability inactive status unless the lawyer demonstrates by clear and convincing evidence

that (i) the procedure followed in the other jurisdiction did not comport with Colorado’s

requirements of due process of law; (ii) the reason for the original transfer to disability

inactive status no longer exists; or (iii) the proof upon which the other jurisdiction based its

determination of disability is so infirm that the determination of the other jurisdiction

cannot be accepted. In all other respects, a final adjudication in another jurisdiction that a

lawyer, whether or not admitted in that jurisdiction, should be transferred to disability

inactive status conclusively establishes the disability for purposes of this rule.

(3) Petition Premised on Order of Commitment, Guardianship, or Judicial Declaration

of Incompetence. On learning that a lawyer is subject to a valid and current order of

commitment, is under guardianship, or is subject to a judicial declaration of incompetence

to stand trial, the Regulation Counsel may file with the Presiding Disciplinary Judge a

petition seeking the lawyer’s transfer to disability inactive status, accompanied by proof of

the basis for the petition. On receiving a properly supported petition, the Presiding

Disciplinary Judge may transfer the lawyer to disability inactive status. The Presiding

Disciplinary Judge must send notice of the transfer to the lawyer or, where applicable, to

the lawyer’s guardian or the director of the facility to which the lawyer has been

committed.

(4) V erified Notice Filed By Lawyer. If a lawyer believes that she or he is disabled, the

lawyer must, if able, file with the Presiding Disciplinary Judge a verified notice setting

forth the basis for the assertion of disability accompanied by proof thereof. On receiving a

properly supported notice, the Presiding Disciplinary Judge will transfer the lawyer to

disability inactive status.

(5) Allegation of Inability to Defend. After an allegation of inability to defend a

disciplinary proceeding has been raised under C.R.C.P. 243.7, the Presiding Disciplinary

Judge may transfer a respondent to disability inactive status either:

(A) If the respondent has raised the issue of disability as provided in C.R.C.P.

243.7(d)(1); or

(B) If, subject to the procedures in C.R.C.P. 243.7(f), clear and convincing evidence

shows that the respondent is disabled within the meaning of C.R.C.P. 243.4(a).

(b) Service of Process. When a petition is filed under this rule, a lawyer may be served

with process by personal service; by mail or email using the information provided by the

lawyer under C.R.C.P. 227; by mail to any other address the lawyer has provided to the

Regulation Counsel; or, if the lawyer is not admitted in Colorado, by mail or email to the

lawyer’s address of registration in any jurisdiction where the lawyer’s registration is active.

Service is deemed effective on the date that the lawyer is personally served, that the

petition is placed in the mail, or that the email is sent.

should be transferred to disability inactive status. The Presiding Disciplinary Judge also

has discretion to hold a hearing to address any issue in a disability proceeding. The clerk

of the Presiding Disciplinary Judge may issue subpoenas under C.R.C.P. 45. Disability

hearings are conducted by the Presiding Disciplinary Judge, sitting without a Hearing

Board. Except as otherwise provided in this rule, disability proceedings must be conducted

in accordance with the Colorado Rules of Civil Procedure and civil trial practice in this

state. The Presiding Disciplinary Judge may receive any evidence with probative value

regardless of its admissibility under the rules of evidence if the lawyer has a fair

opportunity to rebut hearsay evidence.

(d) Privilege Against Self-Incrimination and Adverse Inferences. A lawyer cannot be

required to testify or to produce records over the lawyer’s objection if doing so would

violate the lawyer’s constitutional privilege against self-incrimination. But in proceedings

under this rule, the Presiding Disciplinary Judge may draw an adverse inference from a

lawyer’s failure to testify or to produce records. The Presiding Disciplinary Judge may also

draw an adverse inference from a lawyer’s disregard of orders issued in a disability

proceeding.

(e) Confidentiality. An order transferring a lawyer to disability inactive status is

available to the public. Otherwise, disability proceedings, files, and records are confidential

and are not available to the public, except by order of the supreme court or the Presiding

Disciplinary Judge. All entities described in this rule and all individuals working or

volunteering on behalf of those entities have an ongoing duty to maintain the confidentiality mandated by this rule. But the Regulation Counsel may disclose any information

reasonably necessary either to correct false or misleading public statements made during a

disability proceeding or to defend against litigation in which the Regulation Counsel is a

named defendant. A lawyer may release information arising from the lawyer’s own

disability proceeding or authorize the Regulation Counsel to release such information,

unless the information is made confidential by rule or order.

(f) Costs. The Regulation Counsel bears the costs of petitioning for a lawyer’s transfer

to disability inactive status, including examination costs, unless the Presiding Disciplinary

Judge exercises discretion to order otherwise.

History

Source: Entire rule added and adopted May 20, 2021, effective for cases filed with the Presiding Disciplinary Judge or the Supreme Court on or after July 1, 2021, and, as to all other matters covered by these rules, effective July 1, 2021. ANNOTATION Annotator’s note. The following annotations include cases decided under former provisions similar to this rule. Former section (a) is not unconstitutional. Requiring attorney to prove mental illness by clear and convincing evidence was not contrary to § 13-25-127 (1), which establishes a prepon- derance of the evidence as the quantum of proof in civil cases, because an attorney disciplinary proceeding is not strictly a civil proceeding. People v. Sullivan, 802 P.2d 1091 (Colo. 1990). Supreme court affirms order of presiding disciplinary judge (PDJ) transferring attor- ney to disability inactive status. The office of attorney regulation counsel (OARC) adequately petitioned PDJ for a disability proceeding under section (c) of this rule by filing status report. Because the status report unquestionably put attorney on notice of the disability proceeding and gave him or her a meaningful opportunity to oppose the OARC’s request for an indepen- dent medical examination (IME), the report sat- isfied the ‘‘petition’’ requirement of section (c). In addition, the law of the case doctrine did not preclude the PDJ from reconsidering his or her decision to disregard the report of the first medical expert retained to conduct an IME of the attorney. In light of testimony of this expert, PDJ acted ‘‘upon proper grounds’’ when her or she decided to reconsider earlier ruling disre- garding expert’s report. Even without medical report, adverse inference of disability drawn by PDJ on the basis of attorney’s disregard of orders to cooperate in second IME process was by itself sufficient to establish by clear and convincing evidence that the attorney suffers from a mental or emotional infirmity or illness and that such infirmity or illness prevents the attorney from both defending himself or herself in the consolidated disciplinary proceeding and fulfilling the responsibilities as an attorney, thereby requiring the attorney to petition for reinstatement under C.R.C.P. 251.30. In re Bass, 142 P.3d 1259 (Colo. 2006). Applied in People v. Luxford, 626 P.2d 675 (Colo. 1981); People v. Southern, 638 P.2d 787 (Colo. 1982); People v. Barbour, 639 P.2d 1065 (Colo. 1982); People v. Dwyer, 652 P.2d 1074 (Colo. 1982); People v. Craig, 708 P.2d 787 (Colo. 1985).

Provenance

Source: content.leg.colorado.gov
Retrieved: 2026-09-15
Edition: 2026-09-15
Content hash: 837d54d350c09171f406c8b574a90d4ee34ca34c90f5195f88fe438a47ea807d

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