Frequently Asked Questions Relating to Subpoenas:
If a judge doesn’t sign the subpoena, it’s not valid, right? So, I don’t have to show up to court?
Wrong. Subpoenas are rarely signed by a judge, usually, they are signed by the Clerk of Court, or by the attorney as an officer of the court. If you do not appear as directed in the subpoena, you could be found in contempt of court which could result in a fine or jail time.
What do I have to bring to the deposition or to court?
Bring whatever the subpoena tells you to bring. Most often that will be your entire file on the client in question. Be careful what you do with the digital file or the paper file. If you have a third party storing the client file information and a breach occurs, you will be prosecuted under the HIPAA HITECH 45 CFR part 160 which holds you liable for a client information security breach. In cases like this, a Cyber Liability product will insure your risk from these incidents.
You told your client you wouldn’t be involved in any court proceedings but you got a subpoena anyway. You don’t have to appear, right?
Wrong. You have to appear. A subpoena is a court order, and you must do what it says.
Do you have to produce your chart? If the subpoena directs you to, then yes. However, if you believe that releasing the chart would not be in your client’s best interest, you need to receive legal advice. For example, in a child custody case, if the child has made statements against one parent that could cause that parent to punish the child, or damage the reputation of a divorcing spouse, you should ask for attorney assistance to have portions of the chart redacted, or reviewed in-camera by the judge in the matter for a final ruling.
A free service for NASW RRG policyholders, the Helpline is available for questions regarding a variety of practice interactions, risk mitigation, and general guidance. The most frequent categories of Helpline questions fall within the following categories: