LCSW Prep: Subpoenas and Privilege

A lawyer requests your client's psychotherapy notes. What is your FIRST step?

Contact the client to determine whether they want you to release the records or assert privilege.

A judge signs an order requiring release of therapy records. What is your FIRST response?

Comply with the order.

You are subpoenaed to testify in court about a client. What is your BEST first action?

Consult legal counsel.

You receive an attorney subpoena, but the client cannot be reached. What should you do?

Assert privilege on the client's behalf.

What is privilege?

a legal protection that keeps confidential communications between a client and therapist from being disclosed in legal proceedings.

Who holds the privilege?

The client

What does it mean to "assert," "invoke," or "exert" privilege?

These terms all mean the same thing:

The therapist refuses to release confidential information because the client has chosen to exercise their legal right to confidentiality.

What does privilege allow a therapist to do?

• Withhold confidential records

• Refuse disclosure in response to certain legal requests

• Protect client confidentiality during legal proceedings

What is the biggest limitation of privilege?

Privilege does NOT apply to a court order issued by a judge.

If a judge orders records released, the therapist must comply (unless the court agrees to limit the release).

What is a subpoena?

a formal legal request that may require:

• Production of records, or

• Appearance in court to testify.

What are the two types of subpoenas tested on the LCSW exam?

• Subpoena from a lawyer (attorney)

• Court order (subpoena from a judge/court)

What is a court order?

a legal command issued by:

• A judge

• The court

Can privilege be asserted against a court order?

No.

What should a therapist do if a court order requests the client's written record?

• Release the records as ordered.

• If disclosure may harm the client, request a limited release or advocate for confidentiality.

• If the court denies the request, comply fully.

On the LCSW exam, should you notify the client first when responding to a court order for records?

No.

A judge orders you to provide your client's therapy records. What is the BEST next step?

Comply with the court order.

An attorney subpoenas your client's therapy records. What is your FIRST step?

Contact the client to determine their wishes.

Why should you contact the client after receiving an attorney subpoena?

Because the client—not the therapist—holds the privilege.

What should you do if you cannot reach the client after receiving an attorney subpoena?

Assert privilege on the client's behalf.

If you work for an agency and receive an attorney subpoena, what may be the BEST first step if it's an answer choice?

Consult the agency's legal counsel.

An attorney subpoenas your client's therapy record. Which is the BEST initial response?

Contact the client to determine their wishes.

An attorney subpoenas records, but the client cannot be reached despite multiple attempts. What should you do?

Assert privilege on the client's behalf.

Does privilege apply to subpoenas requesting testimony?

No.

What should you do if subpoenaed to testify?

Obtain legal counsel.

On the LCSW exam, should you contact the client first if subpoenaed to testify?

No.

You receive a subpoena requiring you to testify in court. What is the BEST initial action?

Consult legal counsel.

How do you respond to a subpoena from an attorney requesting records?

• Contact the client.

• Determine their wishes.

• Release records if authorized.

• Assert privilege if requested or if the client cannot be reached.

How do you respond to a court order requesting records?

1. Comply with the order.

2. If appropriate, advocate for limited disclosure.

3. If denied, release the records.

How do you respond to a subpoena requesting testimony?

• Obtain legal counsel.

• Appear in court if required.

Why is "Follow jurisdictional regulations" often the best exam answer?

The ASWB exam is a national exam, and laws vary by state.

Attorney subpoena vs. Court order—what's the difference?

Attorney Subpoena	Court Order
Client decides	Judge decides
Contact client	Do not contact client first (for exam purposes)
Privilege may be asserted	Privilege cannot be asserted
Records may be withheld	Must comply

Records subpoena vs. Testimony subpoena—what's the difference?

Records	Testimony
Written documentation	Court appearance
Attorney subpoena → Contact client	Obtain legal counsel
Court order → Release records	Cannot refuse appearance solely by asserting privilege