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Ask Our Attorney: Subpoenas

FOCUS - National Association of Social Workers (Mass. Chapter) Barry Mintzer March 1, 2007

NASW receives more “What should I do?” calls from social workers who have received subpoenas than for any other kind of legal problem. The short answer is, “Do not automatically obey a subpoena.”  The long answer is in this article.

What is a Subpoena?
A subpoena is a summons instructing the social worker to appear as a witness and give testimony, produce records or both in a judicial, administrative, or other formal legal proceeding.  Subpoenas to social workers can occur on any kind of matter, but most arise from divorce, child custody, personal injury and sexual assault cases.  Subpoenas received by social workers often arise from a client’s legal claim of emotional harm against another party, such as where a client sues her employer for sexual harassment.  In such cases, defense counsel wants to know whether the client’s claim of emotional harm is reflected in treatment notes.

Subpoenas come in several flavors: A standard subpoena will seek the social worker’s testimony; a subpoena duces tecum (pronounced “do sis take em”) seeks both the social worker’s testimony and the production of documents.  Sometimes a subpoena will give the social worker the option of producing the record in lieu of appearing and testifying.  Subpoenas can seek a social worker’s appearance at pre-trial depositions or at trial.  A subpoena may be issued by a court clerk, a notary public or a justice of the peace.  Lawyers are often notaries and frequently issue subpoenas for their own cases.

To be valid (for state court purposes), a subpoena must be served by a person over eighteen who is not a party to the legal dispute and must either be given directly to the witness or left at her place of abode.  A subpoena may also be served by someone exhibiting it and reading it to the witness, but this is rare.  The rules are somewhat different for subpoenas issued in connection with federal cases.  A social worker who receives a federal subpoena should consult with legal counsel.

What should a social worker do when served with a subpoena?
It is wise not to ignore a subpoena.  Under Massachusetts Rules of Civil Procedure, failure to respond to a properly served subpoena, without adequate excuse, may be deemed a contempt of court.  Although a subpoena is a legal command for a social worker’s appearance, testimony and/or production of clinical records, it does not, in itself, authorize or require the social worker to reveal a client’s confidential and privileged communications.  Massachusetts law setting out the client/social worker privilege provides that: “ any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a client shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said client and a social worker...”

So unless the social worker has the explicit written consent of the client to provide testimony or documents, or a court order signed by a judge, no information should be provided.

When a social worker receives a subpoena and does not have the client’s consent to reveal confidential information, a call by the social worker to the attorney who issued the subpoena explaining the social worker’s statutory duty to protect client confidentiality will usually suffice.  It then becomes the attorney’s responsibility to seek a court determination whether a statutory or judicial exception to confidentiality applies.  It may become necessary for the social worker’s legal counsel to call the attorney to explain the law, but most attorneys are now aware of the limitations on disclosure of information by social workers.  The social worker could hire her own attorney to go to court to “quash” (set aside) the subpoena, but this can be expensive and is usually unnecessary.

If the social worker is in contact with the client whose confidential information is being subpoenaed, the social worker could provide the client with a copy of the subpoena, and discuss the information that the subpoena requests.  If the client consents to the release of the information, the social worker should obtain the client’s authorization in a written release signed by the client.  If the client has an attorney, the social worker may want to obtain permission, in the form of a signed release, from the client to speak directly with the attorney.  This may be useful if the client opposes release of the information so that the client’s attorney, rather than the social worker, can take the lead and fi le the appropriate papers in court either to quash the subpoena or oppose the other counsel’s motion for a court order.  Unlike deposition subpoenas, a trial subpoena will require the social worker to go to court and inform the judge she cannot provide testimony without her client’s written consent or an order by the court to testify.  The client’s lawyer (in a civil case) will ordinarily take the lead in seeking to exclude the social worker’s testimony, but if this does not occur the social worker is obligated to inform the judge she does not have permission to disclose confidential communications.  The judge will then make rulings about the admissibility of the testimony based on statutory and case law exceptions to the client’s privilege.

What to Do Once a Court Has Issued an Order?
Once a court has issued an order instructing a social worker to testify or release records, the social worker has no legal basis on which to refuse and can be held in contempt if she does not comply.  The NASW Code of Ethics provides that when a court ordered disclosure could cause harm to the client, the social worker should request that the court withdraw or limit the order or keep the records under seal.  It is not clear how a social worker can meaningfully implement this provision.  The social worker could refuse to obey the court’s order as a matter of conscience, but this should be done only if she is prepared to be found in contempt of court and face time in jail or a fine or both.

Social workers are often inconvenienced by having to cancel clients and attend a trial or a deposition, but such is the cost of doing business in a profession where clients are occasionally involved in legal disputes.  In the case of deposition subpoenas, the social worker may be able to persuade the issuing attorney to reschedule the deposition to a more convenient time.  Attorneys are usually willing to schedule a social worker’s court testimony for a specific time to minimize the loss of time.

Unfortunately, a subpoenaed person may not charge for her time in court or for lost income.  A subpoenaed social worker is entitled to statutory fees for one day’s attendance and associated transportation costs, but this is about eight dollars, plus ten cents per mile.

The bottom line is, don’t testify without the client’s written consent or a court order and don’t ignore a subpoena.

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