Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision (c) of subdivision 5.19, entitled "Procedure Following Decision of a Disciplinary Hearing Panel," of Rule 5, entitled "Complaints and Proceedings Thereon," and in lieu thereof adoption of a new subdivision (c) of subdivision 5.19 of Rule 5, entitled "Procedure Following Decision of a Disciplinary Hearing Panel."

(2) Adoption of a new subdivision 5.285, entitled "Consideration of Mental Disorder in Determining Discipline and Reinstatement" and a Comment thereto of Rule 5, entitled "Procedure Following Decision of a Disciplinary Hearing Panel."

1.  It is ordered that subdivision 5.19(c) of Rule 5 be and the same is hereby repealed and a new subdivision 5.19(c) adopted in lieu thereof to read as follows:

5.19  PROCEDURE FOLLOWING DECISION OF A DISCIPLINARY    HEARING PANEL


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(c) If the disciplinary hearing panel recommends discipline and both parties accept the written decision, the chief disciplinary counsel, within 45 days after the panel's written decision is mailed pursuant to Rule 5.16(f), shall file with this Court a copy of the panel's decision and a statement regarding the parties' acceptance of that decision.  In such event, the Court may issue a final order of discipline.    


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2.  It is ordered that subdivision 5.285 of Rule 5 and a Comment thereto be and the same are hereby adopted to read as follows:

RULE 5.285  CONSIDERATION OF MENTAL DISORDER IN DETERMINING DISCIPLINE AND REINSTATEMENT

(a) For purposes of this Rule 5.285, the following terms mean:


(1)  "Mental disorder" is a condition, found in the current Diagnostic and Statistical Manual, that more than minimally impairs judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments;

(2) "Mitigation claim" is a claim that a mental disorder should be considered in mitigation of professional misconduct; and

(3) "Reinstatement claim" is a claim by a person seeking reinstatement under Rule 5.28 that a mental disorder caused or had a direct and substantial relationship to the professional misconduct resulting in a suspension or disbarment and that the person has a current ability to manage the mental disorder.

(b) A mental disorder, including, but not limited to, substance abuse or dependency, is not a defense to allegations of professional misconduct but may be considered as a mitigating factor in determining appropriate discipline.  A person claiming a mental disorder as a mitigating factor shall identify the mental disorder and how it relates to the alleged professional misconduct no later than in the answer or amended answer.  For good cause shown, the time for claiming the mitigating factor may be extended.

(c) A mental disorder is not a mitigating factor in a disciplinary proceeding unless an independent, licensed mental health professional provides evidence that the mental disorder caused or had a direct and substantial relationship to the professional misconduct.  Respondent shall bear the burden of proof that the mental disorder is a mitigating factor.  

(d) Demonstration of management of the mental disorder will be considered in determining whether to impose discipline less than that which would have been imposed upon a lawyer in similar circumstances where a mental disorder was not present, but does not in itself entitle the person to imposition of a lesser discipline.

(e) The person’s current ability to manage a mental disorder shall not be considered in a reinstatement proceeding unless an independent, licensed mental health professional mutually agreed upon by the person and the chief disciplinary counsel provides evidence that the mental disorder caused or had a direct and substantial relationship to the professional misconduct.  Such evidence can be evidence presented in the disciplinary proceeding.  The person seeking reinstatement shall bear the burden of proving the causal relationship and current ability to manage the mental disorder.  All costs of the independent licensed mental health professional in a reinstatement proceeding shall be paid by the person seeking reinstatement.

(f) The following two factors must be established by any person raising a mitigation claim or a reinstatement claim before the Court will give consideration to the claim:

(1) The ability to manage the mental disorder for a meaningful and sustained period of successful functioning; and

(2) Recurrence of the misconduct is unlikely.

(g) In addition, the following factors shall be considered, to the extent relevant to a particular case, in determining whether the person will be permitted to practice:

(1) The seriousness of the misconduct;

(2) The extent to which the misconduct is attributable to the mental disorder;

(3) The extent to which the mental disorder will interfere with the ability to practice law;

(4) The results of a functional analysis of the person’s abilities in light of the mental disorder;  

(5) Other health conditions the person has that interact with, or result in, mental health disorders or impairments;

(6) The person’s prognosis including, but not limited to, the likelihood of relapse as determined by an independent evaluation;

(7) The person’s history of dealing with the mental disorder;

(8) The person’s ability to self monitor the person’s status in relation to the mental disorder;

(9) The level of monitoring that will be needed;

(10) The length of time monitoring will be needed;

(11) The cost of monitoring; and

(12) The likelihood the person will be able to continue to practice in a manner in which the public is protected once any period of monitoring is complete.


(h) A person who asserts a mitigation claim or reinstatement claim shall disclose to the chief disciplinary counsel, beginning with the date the person first applied to attend law school, the name of every healthcare provider by whom and at which the person has been examined or treated related to any and all mental disorders, including, but not limited to, every psychiatrist, psychologist, professional counselor, social worker, physician, treatment center, and hospital.

The person shall furnish to the chief disciplinary counsel written consent for each named person or entity to divulge information and records related to such examination, treatment, or both, to the chief disciplinary counsel.  

Such records shall be filed under seal and shall not be disclosed by the chief disciplinary counsel, regional disciplinary committee, disciplinary hearing panel, or the advisory committee outside the proceeding during the course of any investigation, disciplinary hearing, or court proceeding, unless ordered otherwise by this Court.

(i) Protection of the public and the integrity of the legal profession shall be the primary issues in determining whether the person will be permitted to practice on probation pursuant to Rule 5.225 or otherwise.


Comment


Lawyers, like other human beings, are subject to very stressful life events.  For example, an automobile accident, an office fire, a marriage dissolution, or the death of a loved one are all very demanding circumstances.  However, the response to such situations is not what is meant here by a mental disorder.  Some people may seek mental health counseling in such circumstances, but that process in and of itself does not mean reactions to such stressful events rise to the level of mental disorder.

Conditions that impair judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments are the issue.  Conditions that are more likely to produce this type of impairment include, but are not limited to, schizophrenia and other psychotic disorders, bipolar illness types I and II, major depressive disorder, substance dependence or abuse, delirium, and dementia.

Some conditions included in the Diagnostic and Statistical Manual as conditions that may be quite serious and in need of professional treatment are outside the scope of this consideration, unless they impair judgment, cognitive ability, or volitional or emotional functioning in relation to performance of professional duties and commitments.

The mere presence of such a disorder, accurately diagnosed and present in a relevant time frame, does not in and of itself call for mitigation.  If such a disorder is under control through effective treatment, a lawyer so afflicted may be quite competent and professional.  Such treatment is to be encouraged.

3.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.

4.  It is ordered that this order be published in the South Western Reporter.

Day - to - Day


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WILLIAM RAY PRICE, JR.
Chief Justice