Quick Reference Guide for Responding to a Subpoena

By Elizabeth M. Felton, JD, LICSW, Associate Counsel and Carolyn I. Polowy, JD, General Counsel

There are a number of legal issues that play an important role in social work practice. One of the most common legal inquiries made by social workers to the NASW legal office is for information about how to respond to a subpoena request for confidential client information. It is important that social workers know how to properly respond to a subpoena in order to avoid breaching a client’s confidentiality, the filing of professional complaints and lawsuits, or HIPAA violations. This Legal Issue of the Month article will review basic information about a subpoena, identify options for responding to a subpoena, and identify additional resources that are recommended to assist with further analysis of issues that arise as a result of the subpoena. Although this article is primarily a quick reference guide, a comprehensive review of subpoenas and related issues are addressed in more detail in a number of existing NASW Legal Defense Fund publications that are listed as resources at the end of the article.

What is a Subpoena?

• A subpoena is a mandate that requires documents (duces tecum) or testimony be provided at a specific time and location (i.e. for a hearing, trial, deposition).
• A social worker can be personally served with a subpoena or it can be sent through U.S. mail, depending on the rules of the court.

What type of litigation is involved?

A social worker is usually subpoenaed to provide information pertaining to various types of litigation their clients are involved in, such as:

• Child custody or visitation disputes
• Divorce cases
• Employment discrimination or wrongful termination
• Disability benefits
• Personal injury claims
• Criminal prosecution cases

How is a subpoena issued?

• Subpoenas may be issued by a judge, a clerk of the court, or an attorney.
• Do not assume that an attorney’s subpoena requesting client records has legal authority requiring the release of records unless it is accompanied by a court order signed by a judge — not the judge’s clerk.
• Do not ignore a subpoena, even if it is not signed by a judge.

What is a Motion to Quash?

• Acceptance of a subpoena does not mean the social worker consents to complying with it.
• Objections to a subpoena can be made with a “Motion to Quash” which is a legal procedure to block or modify a subpoena.
• A client’s attorney or the social worker’s attorney usually files the motion.
• The judge reviews the legal issues involved in the subpoena and determine if the client records or information should be disclosed.

Legal and Ethical Considerations

• NASW Code of Ethics 1.07(j) states that social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law.
• Absent client consent to release records or a recognized legal exception, social workers have a duty to claim privilege on behalf of their clients before releasing any information.

Options for Responding to a Subpoena

• Client Consent Available – a social worker can release a client’s confidential information in response to a subpoena if the client gives written authorization
• No Client Consent and/or Client Unavailable – the social worker can inform the attorney requesting the information, in writing, that the information about all clients is confidential, privileged and cannot be released without written client authorization or a court order
• Client Available/Refused to Consent – suggest that the client ask their attorney to file a “motion to quash” the subpoena or inquire if the social worker’s attorney (retained or through their professional liability insurance) will file a “motion to quash”

What to do if you receive a subpoena?

• Do not ignore it
• Notify your professional liability insurance company
• Contact the client, let them know that you have received a subpoena, and ask if they are willing to provide written authorization for the information to be released
•  Send a copy of the subpoena to the client and to his or her attorney, if authorized by the client to do so
• Review the information being requested
• Do not release the requested information without written authorization from the client or a court order
• Document all tasks/actions (i.e. phone calls, emails, letters, consultations) pertaining to the subpoena

RESOURCES

Professional Liability Insurance

• If a social worker needs legal counsel to assist with a subpoena, they should  contact their professional liability insurer for advice on what to do, to find out if they have coverage for legal representation, identifying an attorney, and if financial assistance with legal costs will be provided.
• Members of NASW who have purchased professional liability insurance through NASW’s Assurance Services, Inc. generally have policy coverage that includes legal representation related to responding to a subpoena for records (up to $400 per policy year) and a subpoena for depositions ($5,000 per deposition; up to $35,000 per policy year). NASW members should contact NASW Assurance Services ( 1-800-875-1911 FREE) for more information and to confirm their coverage regarding assistance provided for subpoenas.
• Also see http://www.naswassurance.org/pli/subpoena/ for more information.

NASW RESOURCES

NASW Legal Defense Fund Legal Issue of the Month articles (available at www.socialworkers.org/ldf/legal_issue/default.asp)

• Access to Records by Social Workers’ Clients(October 2012)
• Release of Records and Client Privacy(October 2011)
• Social Workers and Record Retention Requirements(November 2010)
• Children’s Treatment Records: Parental Access and Denial(June 2010)
• Responding to a Subpoena (April 2009)
• Social Workers and Confidentiality for Couples Counseling(November 2007)
• Social Workers and Non-custodial Parents’ Requests for   Records(March 2007)
• Social Workers and Psychotherapy Notes(June 2006)
• Children’s Rights to Confidentiality (May 2006)
• Social Workers and Psychotherapist-Patient Privilege:Jaffee v. RedmondRevisited(March 2005)
• Social Workers, HIPAA, and Subpoenas(July 2003)

NASW Office of General Counsel Law Note — Social Worker and Subpoenas

The Social Workers and Subpoenas Law Note was developed through the NASW Legal Defense Fund and provides an in-depth treatment of the legal and ethical issues surrounding social workers’ subpoenas. It is available for purchase at http://www.naswpress.org/publications/legal/index.html

Other NASW Office of General Counsel Law Notes (order form available atwww.socialworkers.org/ldf/lawnotes/default.asp)

• Client Confidentiality and Privileged Communications
• The Social Worker and Protection of Privacy
• Social Workers and Clinical Notes
• Social Workers as Expert Witnesses

NASW Lunchtime Series — Social Workers and Subpoenas (February 2009).

NASW Code of Ethics (2008) available at: http://www.socialworkers.org/pubs/code/default.asp