12.06 Reinstatement After Disability Suspension

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A. Venue: An attorney who has been indefinitely suspended under this part may have the suspension terminated by filing a verified petition with the Board of Disciplinary Appeals or a district court. Venue of a district court action is:

1. In the county, immediately prior to suspension, of the Respondent’s principal place of practice.

2. If the Respondent did not maintain a place of practice immediately before suspension within the State of Texas, in the county of the Respondent’s residence.

3. If neither A. nor B. applies, then in Travis County, Texas.

B. Petition and Service: The petition must set out the attorney’s name, address, the date, and the docket number of the suspension, a detailed description of his or her activities since the suspension, including employment, the details of any hospitalization or medical treatment, and any other matters the attorney believes entitles him or her to termination of the suspension. A copy of the petition shall be served by U.S. certified mail, return receipt requested, upon the Chief Disciplinary Counsel and the matter shall promptly thereafter be set for hearing. The petition must have the following documents attached: a certified copy of any court order pertaining to the petitioner’s competence; an affidavit from a mental health care provider as to the petitioner’s current condition; and a report from a physician as to the petitioner’s current condition if the suspension was based in whole or in part on the abuse or use of alcohol or other drugs. Such attachments shall not constitute evidence, per se, but the attachment of the same is a requirement of pleading. In an action for reinstatement under this part, either the petitioner or the Commission shall have the right to a jury trial upon timely payment of the required fee.

C. Burden of Proof: The petitioner has the burden to come forward and prove, by a preponderance of the evidence, that the reasons for suspension no longer exist and that termination of the suspension would be without danger to the public and the profession. The Board of Disciplinary Appeals or the district court, as the case may be, may order the petitioner to be examined by one or more health care providers trained in the area for which the attorney was suspended.

D. Time for Filing Subsequent Petitions: A first petition for termination of suspension may be filed at any time after the petitioner’s license has been suspended under this part. If the first petition is denied after a hearing, subsequent petitions may not be filed until the expiration of one year from the date of the denial of the last preceding petition.

E. Judgment: If the attorney meets the burden of proof, the Board of Disciplinary Appeals or the district court shall order a termination of the period of suspension, provided that whenever an attorney has been suspended for a period of two or more consecutive years, he or she may be required by the Board of Disciplinary Appeals or the district court, as the case may be, to obtain a passing grade on the multistate Professional Responsibility portion of the State Bar examination administered by the Board of Law Examiners, or take a prescribed course of study through a law school or through continuing legal education courses, or do both.

F. Disability Probation: The Board of Disciplinary Appeals or the district court, as the case may be, may order that an attorney be placed on probation if the attorney has demonstrated each of the following:

1. The ability to perform legal services and that the attorney’s continued practice of law will not cause the courts or profession to fall into disrepute.

2. The unlikelihood of any harm to the public during the period of rehabilitation and the adequate supervision of necessary conditions of probation.

3. A Disability that can be successfully arrested and treated while the attorney is engaged in the practice of law.

Probation shall be ordered for a specified period of time or until further order of the Board of Disciplinary Appeals or the district court, as the case may be, whenever a suspension is probated in whole or in part.

G. Conditions: The order placing an attorney on Disability probation must state the conditions of probation. The conditions must take into consideration the nature and circumstances of the Professional Misconduct and the history, character, and condition of the attorney. Any or all of the following conditions, and such others as the Board of Disciplinary Appeals or the district court deems appropriate, may be imposed:

1. Periodic reports to the Chief Disciplinary Counsel.

2. Supervision over client trust accounts as the Board of Disciplinary Appeals or the district court may direct.

3. Satisfactory completion of a course of study.

4. Successful completion of the multistate Professional Responsibility Examination.

5. Restitution.

6. Compliance with income tax laws and verification of such to Chief Disciplinary Counsel.

7. Limitations on practice.

8. Psychological evaluation, counseling, and treatment.

9. The abstinence from alcohol or drugs.

10. Payment of costs (including Reasonable Attorneys’ Fees and all direct expenses) associated with the proceedings.

11. Substance abuse evaluation, counseling, and treatment.

12. Participation in an Impaired Attorney Recovery and Supervision Program if such a program has been adopted by the Board of Directors of the State Bar of Texas.

H. Administration: The Chief Disciplinary Counsel is responsible for the supervision of attorneys placed on Disability probation. Where appropriate, he or she may recommend to the Board of Disciplinary Appeals or to the district court, as the case may be, the modification of the conditions and shall report any failure of the probationer to comply with the conditions of probation. Upon a showing of failure to comply with the conditions of probation, the Board of Disciplinary Appeals or the district court, as the case may be, may revoke the probation or impose such other conditions deemed necessary for the protection of the public and the rehabilitation of the attorney.


 

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