Social Workers and Subpoenas

From March 1997 NASW NEWS

Social workers who receive a subpoena must act quickly to establish the parameters of a response that takes into consideration both ethical concerns and legal duties.

Receiving a subpoena can be intimidating, but the social worker should remember that the court has not yet made a decision about the validity of the subpoena. Although an attorney has broad power in issuing a subpoena, the social worker must not be misled into mistakenly producing privileged material.

When considering how to respond to a subpoena, the social worker must always remember the rights of the client and the authority of the court. The failure to respond correctly can lead to the disclosure of privileged material without the client's consent or the imposition of contempt sanctions by the court.

The social worker should thoroughly read a subpoena, noting the date for response, the action required and the court and attorney that issued it.

Social workers should contact the clients involved and provide them with copies of the subpoena.

Clients who consent to the release of information should provide a written release to the social worker. If clients are uncertain or object to the release of information, their records generally may not be released or discussed.

Federal and state laws and the NASW Code of Ethics may require or permit release of records without a client's consent unless there is an appropriate reason for withholding them.

Records should never be released before thoroughly verifying and documenting the legal and ethical mandates for doing so and, if possible, advising the client.

The social worker should obtain the client's written consent to discuss the subpoena with the client's attorney and to provide the attorney with a complete set of the subpoena documents or other documents the client wants the attorney to review.

A social worker who does not understand what a subpoena is seeking may, with the client's written consent, contact the client's attorney. If the client doesn't have an attorney, the clerk of court may be able to provide some assistance or the social worker may retain counsel.

If the social worker is contacted by the attorney who issued the subpoena but the client has not consented to the release of information, the social worker should not provide any information to the attorney.

After understanding what is required and what the client is permitting, the social worker can contact the issuing attorney to arrange for compliance with the subpoena's request.

The social worker may be entitled to witness and mileage fees or payment of copying costs. These should be discussed with the attorney who issued the subpoena. If the material requested is privileged or procedurally improper, the social worker has the right to object by filing written objections, requesting a protective order or filing a motion to quash or modify the subpoena. The issuing party then cannot gain access to the information without first receiving a court order.

If a claim of privilege is asserted on behalf of the client, the social worker must still attend the deposition or trial and state this claim on the record and be ready to provide some basis for the assertion.

At any time during the subpoena process, the social worker may consult or retain an attorney. Often, however, the client's attorney can provide necessary information that protects the client's interests.

A social worker employed by or under contract to an agency, employee assistance program, managed care facility, hospital, or other entity that provides social work services should give a copy of the subpoena to the facility's attorney along with a request for special consultation regarding a proper response.

The social worker should document in the client's file all activity regarding the response to the subpoena.