Rule 5.9 - Attorney Assistance Evidence(a) Definition. For the purposes of this rule, an "attorney assistance program" is any treatment, counseling, training or remedial service, created under ORS 9.568 or otherwise, designed to provide assistance to attorneys or LPs who are suffering from impairment or other circumstances which may adversely affect their professional competence or conduct, or to provide advice and training to attorneys or LPs in practice management.(b) Use of Evidence by Respondent. Subject to the provisions of BR 5.1(a) and this rule, the respondent may offer evidence at a disciplinary hearing concerning the respondent's participation in or communication with an attorney assistance program. If the respondent fails to provide timely notice to Disciplinary Counsel as required under BR 5.9(c), the respondent may not offer evidence of the respondent's participation in or communication with an attorney assistance program at the hearing.(c) Prior Notice. If the respondent intends to offer evidence at a hearing concerning the respondent's participation in or communication with an attorney assistance program, the respondent shall file with the Disciplinary Board Clerk, with proof of service on Disciplinary Counsel, written notice of such intent, not less than 63 days prior to the date the hearing is scheduled to commence. For good cause shown, the Adjudicator may permit the respondent to give the notice within a shorter period of time. The notice shall specify the identity of the attorney assistance program, the nature of the evidence that will be offered, the names of the service providers with whom the respondent dealt, and the names and addresses of witnesses the respondent intends to call to present the evidence. The notice shall also include the consent or waiver required by BR 5.9(d). The respondent shall provide a copy of the notice to the attorney assistance program.(d) Discovery. In the event the respondent provides a notice to Disciplinary Counsel under BR 5.9(c), Disciplinary Counsel may conduct discovery concerning the respondent's participation in or communication with the attorney assistance program. The respondent shall provide any consent or waiver necessary to permit Disciplinary Counsel to obtain discovery from the attorney assistance program or its service providers at the time the respondent provides the notice required by BR 5.9(c). Questions regarding the permissible scope of discovery under this rule shall be resolved by the Adjudicator on motion pursuant to BR 4.5(c).(e) Discovery not Public. Records and information obtained by Disciplinary Counsel through discovery under this rule are not be subject to public disclosure pursuant to BR 1.7(b), consistent with ORS 9.568(3), and may be disclosed by the parties only in the disciplinary proceeding.(f) Use of Evidence by Bar. The Bar shall have the right to introduce evidence obtained through discovery under this rule only if the respondent introduces evidence of participation in or communication with an attorney assistance program.(g) Enforcement. The Adjudicator may issue a protective order and impose sanctions to enforce this rule pursuant to BR 4.5(d) and (e).Rule 5.9 added by Order dated November 30, 1999. Rule 5.9a amended by Order dated February 5, 2001. Rule 5.9c amended by Order dated June 17, 200, effective 7/1/2003. Rule 5.9b, 5.9c, 5.9d, 5.9e, 5.9f, and 5.9g amended by Order dated May 3, 2017, effective 1/1/2018. Rule 5.9(a) amended by Order dated August 17, 2022, effective 7/1/2023.