Many of us preparing for our ASWB social work exams have never encountered a situation in which we are being subpoenaed. This also happens to be a topic that is often overlooked during our schooling. This leaves a lot of social workers feeling unprepared for questions around privilege and subpoenas on the LMSW and LCSW exams.
It is almost a guarantee you’ll see this subject show up on your test, so it’s an area you want to go in feeling confident about. The good news is TDC’s LMSW and LCSW programs cover this subject thoroughly AND you have access to a coach you can email with any lingering questions you have on this (or any other) topic.
A subpoena is a written request to produce records or to appear in court.
You can receive a subpoena from a lawyer. You also can receive a subpoena (or a court order) from the court or judge for records or for testimony.
How you will respond to a subpoena depends on 1. Who it is from and 2. What it is for. Under some circumstances you can assert privilege and in others you cannot. Asserting privilege means the social worker can refuse to provide any information, including knowledge of the client. So when can you (and can’t you) assert privilege?
- If you are subpoenaed by a lawyer for the written record, you can assert privilege on behalf of your client if they do not want you to turn over their record.
- When you are subpoenaed by the court/a judge, you cannot assert privilege and have to turn the record over to the court. If you think it could be damaging to the client, you can advocate for confidentiality/limited release, but if they say no, you must turn over the record.
- If you are subpoenaed for testimony, you cannot assert privilege. Privilege only applies to the written record.
A social worker is working with a client who is suing his former place of employment for wrongful termination. The social worker receives a subpoena from their client’s lawyer for a copy of the client’s record. What should the social worker do FIRST?
A. Contact the client to determine their wishes
B. Assert privilege on the client’s behalf
C. Consult with their own attorney
D. Provide a copy of the record
(scroll for answer and rationale)
The correct answer is (A), to contact the client to determine their wishes. Since this request is coming from the client's lawyer, they may want us to turn over the record. If they do, then we would do (D) after (A). If they do not, we would then assert privilege (B). There is no reason to do (C) at this time.
Are you ready for subpoena questions on the exam? Whether you’re feeling ready or uncertain, know that TDC’s exam prep programs cover this topic in detail and give you a LOT of practice questions on subpoena related scenarios. TDC’s LMSW and LCSW exam prep programs give you everything you need to be successful on the exam, without overwhelming you with content you don’t need. We’ve helped
THOUSANDS of social workers PASS their exams with confidence over the past decade. Are you ready to PASS with confidence?
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