When a subpoena lands on your desk demanding client therapy records, your stomach drops. Your training screams to protect confidentiality at all costs. But ignoring legal process has serious consequences - including contempt of court, fines, and damage to your professional reputation. The good news? You have more power than you think. Understanding the difference between subpoenas and court orders, knowing when to assert privilege, and following proper procedures protects you, your client, and the therapeutic relationship you have worked so hard to build.
Subpoena vs. Court Order: Understanding the Critical Difference
This distinction matters more than anything else you will learn about legal process. Getting it wrong can mean either violating your client's confidentiality unnecessarily or facing serious legal consequences for non-compliance.
Subpoena (Attorney-Issued)
- 1. Issued by an attorney, not a judge
- 2. Does NOT automatically require disclosure
- 3. Privilege can and should be asserted
- 4. Can be challenged or quashed
- 5. Client consent is typically required
Court Order (Judge-Issued)
- 1. Signed by a judge after legal review
- 2. Generally requires compliance
- 3. Judge has already ruled on privilege
- 4. Non-compliance risks contempt charges
- 5. May still be appealed in some cases
The practical implication is significant: when you receive a subpoena, your first response should be to assert privilege on behalf of your client - not to immediately hand over records. A subpoena is essentially a request, not a command. A court order, however, represents a judicial determination that has weighed the competing interests and found that disclosure is required.
Step-by-Step Response Protocol
When legal process arrives, having a clear protocol prevents panic-driven mistakes. Follow these steps in order, documenting each action thoroughly.
Immediate Response Checklist
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1
Note the deadline
Mark your calendar immediately. Most subpoenas require response within 14-30 days, but some demand faster turnaround.
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2
Identify the type of legal process
Is this a subpoena (attorney signature) or court order (judge signature)? This determines your response strategy.
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3
Contact the client immediately
Your client must know about the subpoena. They may want to assert privilege, consent to disclosure, or hire an attorney.
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4
Do not release anything yet
Even if you feel pressured, take time to follow proper procedure. Hasty disclosure cannot be undone.
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5
Consult with an attorney
Especially for complex situations, an attorney can help you navigate competing obligations and protect your interests.
Asserting Privilege: Your Client's Shield
Therapist-client privilege belongs to the client, not to you. However, you have an ethical obligation to assert it on their behalf until they waive it. This is a crucial distinction that many therapists misunderstand.
When asserting privilege in response to a subpoena, your letter should clearly state that the requested records are protected by therapist-client privilege, that your client has not waived this privilege, and that you cannot produce the records without either client consent or a court order specifically compelling disclosure after a hearing on the privilege issue.
What to Include in Your Privilege Assertion Letter
- Your name, license number, and practice information
- Reference to the specific subpoena (case number, date received)
- Citation to your state's therapist-client privilege statute
- Statement that client has not waived privilege
- Clear refusal to produce records absent court order
- Offer to comply if proper court order is obtained
When Your Client Consents to Disclosure
Sometimes clients want their therapy records disclosed - perhaps they are seeking disability benefits, pursuing a personal injury claim, or believe the information will help their case. When this happens, you still have obligations to fulfill before releasing anything.
First, ensure the consent is truly informed. Your client should understand exactly what information will be disclosed, who will see it, how it might be used, and that once released, you have no control over how it may be shared further. Get this consent in writing, specifying the exact records covered and the parties authorized to receive them.
Before Releasing Records With Consent
Even with valid consent, consider these protective steps:
- - Review records for references to third parties whose information should be redacted
- - Consider whether releasing only a summary might serve the same purpose
- - Discuss with your client how the records might be perceived or used against them
- - Document the informed consent process thoroughly
When a Court Order Compels Disclosure
If a judge issues a court order compelling disclosure after considering the privilege issue, you generally must comply. Non-compliance can result in contempt of court charges, fines, and even jail time in extreme cases. However, you still have some options and obligations.
Review the order carefully to understand exactly what it requires. Provide only what is specified - nothing more. If the order seems overly broad or if you believe there are grounds for appeal, consult with an attorney immediately. You may be able to request a stay while challenging the order.
Appropriate Response to Court Order
- Comply with the specific scope of the order
- Notify your client before disclosure
- Provide records only to authorized parties
- Document everything you provide
Actions to Avoid
- Ignoring the court order entirely
- Providing more than what is ordered
- Destroying or altering records
- Failing to redact third-party information
Special Situations Requiring Extra Care
Some legal situations present unique challenges that require additional consideration and often specialized legal advice.
Child Custody Cases
Custody disputes frequently involve attempts to subpoena therapy records. Both parents may believe the records will support their case. Remember that if you treated the child, the child holds the privilege - and depending on the child's age and your state's laws, one or both parents may be able to waive it. If you treated a parent, that parent's privilege applies. Never assume one parent can waive privilege for the other parent's treatment.
Criminal Cases
When your client is a defendant in a criminal case, additional constitutional considerations may come into play. If the prosecution subpoenas records, privilege protections are generally strong. However, if your client plans to use mental health as part of their defense, they may need to waive privilege for relevant records. Criminal cases often move quickly, so prompt legal consultation is essential.
Malpractice Claims Against You
If a client sues you for malpractice, they have generally waived privilege regarding the treatment at issue. However, this waiver may not extend to all treatment if only a portion of your care is being challenged. Consult immediately with your malpractice insurance carrier, who will typically provide legal representation.
Danger Zone: Exceptions to Privilege
Be aware that therapist-client privilege has exceptions in most states:
- - Mandatory reporting situations (child abuse, elder abuse, certain violent crimes)
- - Duty to warn situations involving imminent danger
- - Court-ordered evaluations where no therapeutic relationship exists
- - When client puts their mental health at issue in litigation
Documentation Best Practices
Your documentation practices become crucial when legal process arrives. Good habits protect you whether or not you ever face a subpoena.
Documentation Checklist for Legal Process
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A
Keep a copy of all legal documents received
Store subpoenas, court orders, and all related correspondence in a secure file separate from clinical records.
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B
Log all communications about the legal matter
Document every phone call, email, and letter - including date, time, parties involved, and substance of communication.
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C
Document your decision-making process
Write down why you took each action, what resources you consulted, and what advice you received.
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D
Retain proof of what was provided
Keep copies of exactly what records were disclosed, to whom, when, and under what authority.
State-Specific Considerations
Therapist-client privilege varies significantly by state. What protects your client in California may not apply in Texas. Key variations include who is covered (all licensed therapists vs. only certain license types), what communications are protected, what exceptions apply, and procedural requirements for asserting privilege.
Federal cases add another layer of complexity. The federal psychotherapist-patient privilege established in Jaffee v. Redmond (1996) provides protection in federal court, but its scope differs from many state privileges. If you practice near state borders or provide telehealth across state lines, you may need to consider multiple jurisdictions.
Frequently Asked Questions
Can I be held in contempt for not responding to a subpoena?
Not for a standard attorney-issued subpoena if you properly assert privilege. However, if a judge subsequently orders disclosure and you refuse, contempt charges become possible. Always respond to subpoenas - just respond by asserting privilege rather than producing records.
What if I cannot locate my client to notify them?
Make reasonable efforts to contact them using all information you have on file. Document your attempts. If you genuinely cannot reach them, consult with an attorney. You may need to assert privilege on their behalf while the court determines how to proceed.
Should I hire my own attorney or rely on the client's attorney?
Your interests and your client's interests may not always align. In simple situations, your client's attorney may be able to guide you. In complex cases, or if there is any possibility of conflict, having your own legal counsel is advisable. Your malpractice insurance may cover attorney fees.
Can I charge for time spent responding to legal process?
Yes, in most cases. You can typically charge for time spent reviewing records, preparing documents, consulting with attorneys, and appearing for depositions or testimony. Check your state's guidelines and any relevant court orders for allowable fees.
What if the subpoena asks for records I do not have?
Respond honestly stating that you do not possess the requested records. If you once had them but they were destroyed pursuant to your retention policy, explain this. Never destroy records after receiving legal process requesting them - this could constitute obstruction of justice.
Key Takeaways
- Subpoenas are not court orders. An attorney-issued subpoena does not automatically require you to disclose records. Assert privilege first.
- Privilege belongs to your client. Assert it on their behalf until they waive it or a court orders disclosure.
- Always contact your client. They need to know about the legal process and may want to take action through their own attorney.
- Court orders generally require compliance. Once a judge rules, you must typically comply, but review the order carefully and provide only what is specified.
- Document everything. Keep detailed records of all legal process received, your responses, and your decision-making rationale.
- Know your state laws. Privilege rules vary significantly by jurisdiction - what applies in one state may not apply in another.
- Get legal help for complex situations. Child custody, criminal cases, and malpractice claims warrant consultation with an attorney experienced in mental health law.
Protect Your Practice and Your Clients
TheraFocus helps you maintain organized, compliant records that are ready when legal situations arise. Our secure documentation tools make responding to legal process straightforward.
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