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.
What are subpoenas?
A subpoena is a written request to produce records or to appear in court.
Where can subpoenas come from?
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.
What do I do if I receive a subpoena?
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.
ASWB Practice Question:
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.
ASWB Masters and Clinical Exam Preparation
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?
If there is a court order for a minor to receive therapy, but one parent is not available to sign consent for treatment. Are we able to see them for therapy? Custody agreement states 50/50.
How to handle this can vary state to state. If there is a way to contact the other parent, that would be the best place to start as consent from both parents is ideal (even if they have to come in on separate dates or at separate times to consent). If that is not possible, the consenting parent would go to the court to ask for the right to consent on their own.
If a Social Worker receive a court order subpoenas do we have to contact the client before we can turn the records over?
No; once you receive a court ordered subpoena the expected next step is to turn the record over.
If the social worker received the subpoena from the employer's lawyer, should the social worker contact the client first then assert privilege or assert privilege then contact the client?
They should contact the client first to see how the client wants them to respond (this may be asserting privilege or providing the requested information). If contacting the client to determine their wishes isn't an answer option, then we can assert privilege on their behalf.
Is privilege waived if either the client or the therapist sue each other?
In relation to receiving a subpoena, when should a social worker contact legal counsel?
If they are sued, are suing, or if they are subpoenaed for testimony.
Yes it is.
So, in this case technically the client's privilege was waived since client is suing her former employer. However, the exam still wants to make sure we ask the client for the wishes? Is that correct?
No, privilege is not waived here. Privilege is only waived if the client were suing <em>the therapist</em> (not their employer) or if the therapist was suing the client (much less likely).
This one confused me as well because I saw this as the client was using their therapy records as evidence? And I thought if a client is using their records as evidence privilege is waived. Am I assuming this and that this would be something specified in the stem?
If the client sues us or we sue the client, privilege is waived; this has to do with the client suing their workplace. That doesn't inherently waive privilege. So in a situation like this we want to contact the client to determine their wishes (like we would anytime a lawyer subpoenas a client's record).
If you receive subpoena for testimony, would you need to contact the client before seeking legal counsel or seek legal counsel first?
For purposes of the exam, you would seek legal counsel first.