May 28, 2024

Episode 66:

Subpoenaed! What Therapists Need to Know When You Receive One with Dr. Tracy Masiello

In this episode, Tracy shares the steps to take when a therapist receives a subpoena.

Episode 66: Subpoenaed! What Therapists Need to Know When You Receive One with Dr. Tracy Masiello

Show Notes

Kayla: Welcome back to the Designer Practice Podcast. I’m your host, Kayla Das.

Ever worry about what to do if you received a subpoena to release a client’s therapy records to the court? Or maybe you’ve recently received a subpoena but not sure which steps to take next.

In today’s episode, Dr. Tracy Masiello, mediator and expert witness with over 20 years of experience working within the U. S. judicial system, will share with us what we need to know if we receive a subpoena.

Hi, Tracy. Welcome to the show. I’m so glad to have you here today.

Tracy: Thank you, Kayla. It’s a pleasure to be here.

Kayla: Before we dive in, please introduce yourself, where you’re from, and tell us a little bit about your experience as a mediator and an expert witness.


Tracy: So, I’m licensed clinical mental health counselor supervisor and the founder and owner of a private group therapy practice here in Charlotte, North Carolina. I’m also an expert witness in court trials and I primarily work with court involved clients, including those who have high conflict divorce cases, and I serve as a reunification therapist.

I’m also a mediator in superior and district court cases, and I’m a court appointed parenting coordinator for district and family courts. In addition to my clinical work, I provide presentations for continuing law education, called CLEs, to attorneys on topics that are related to therapist roles and legal proceedings. And I’m an approved continuing education provider for therapists through the National Board of Certified Counselors here in the USA.

I’ve also spent years coaching therapists, as well as coaching attorneys to become mediators in the courts. I hold a PhD in psychology, and the concentrations are in counseling psychology and developmental psychology. And one of my favorite aspects of practice is providing coaching and training to therapists about navigating the legal system and effectively testifying in court.

Being a Mediator and Expert Witness

Kayla: Perfect. Well, Tracy, it’s so great to have you here. I’m really interested in your experience as a mediator and an expert witness. Like, how does that work? And what has that provided you when it comes to both being a clinical mental health counselor, as well as being a mediator in general.

Tracy: Sure. So, as a mediator in North Carolina, you do have to be certified. So you go through training, and it includes training in law related matters. You have to go through 40 hours of training. You have to observe a lot of mediations. You have to conduct a lot of mediations. There’s a lot of things that you do to get to that point.

Once you are there though, then you get to have the privilege, and I say fun, of mediating different types of disputes. So, I mediate everything from divorce mediation, where we’re separating assets, deciding child custody, to civil lawsuits. So, between insurance companies and people who’ve been injured. Or between businesses tenants and landlords. So, it really runs the range of types of cases that I get to be involved in. And I enjoy it. It’s a really fun activity to me to help two people who are in conflict come together and be able to sit down in a civil manner and talk through things and hear each other’s perspectives.

One of the things I find the most rewarding is when I always begin by having each person tell their side of the story. And sometimes this is the first time the other sides really heard it from their perspective. A lot of times in briefings and things, it’s all the personal stuff’s been edited out and they really understand why this matters. And so, I’ve had some really great powerful experiences in my time of doing this.

One time I had a business where the person had defaulted on the loan, his business closed, and it was a commercial lease, and he had like a 10-year lease. And so, the company wanted their money. And it was a large amount of money. And when the man’s business had folded, he literally lost everything. And he’d had to move in with an older gentleman. He’d had to move in with his kids. Like he had nothing. So, I walked into this mediation going, it was basically millions and he literally has nothing. How do you help two people like this come together? And it was interesting because when the gentlemen started telling his situation and talking about it in front of the representative for the commercial lease, he was talking about how he really wanted to do something, you know, that this was a matter of honor for him and how terrible he felt that he’d had to renege on the lease. Or default on it. And so, when he defaulted on the lease, he felt bad. It was for him a matter of honor. And he said that he would give whatever it was $20 a month. He wanted to give something he didn’t want to just walk away. And the representative was really touched. And the next thing I know, he’s on the phone with the company talking about this. And they ended up like dropping it down to from millions to like, maybe like 50,000. And even he acknowledged that the man will probably never pay it off, but they were okay with him making payments or something. And so, they both walked away happy from that situation. And that’s why I just love doing mediation because you just never know what’s going to happen. And you really get to see sometimes the best in people.

Kayla: You know, it actually sounds like mediation and counseling, especially if you did couples counseling, isn’t all that different.

Tracy: It’s really not. You’d be surprised how many of my clinical counseling skills I use when I’m doing mediation and helping the two parties talk and communicate with each other.

What is a Subpoena?

Kayla: I can imagine. So, for today’s episode, I know we’re talking about subpoenas, specifically when therapists get subpoenas. So really, let’s break down, like, what is a subpoena?

Tracy: Sure, so that’s a great question. At its core, a subpoena is really just a legal request. It’s made in written form, and it’s issued by a representative of the court. So that can be a judge, it could be a clerk of court, it can even be an attorney. And basically, the subpoena commands that the therapist either testify as a witness or produce certain records that are thought to be relevant to some ongoing legal case or an investigation.

Now when a subpoena is signed by a judge or a magistrate, it is considered a valid court order. And what that means for therapists is if the therapist doesn’t respond, then the therapist can be found in contempt of court. And penalties for contempt can be that the therapist is fined or is even given jail time. And yes, therapists have been put in jail for not responding to a subpoena.

Now if the subpoena is signed by an attorney, it’s not technically a court order, but it is still a legal request. And so, what that means is that a judge could still choose to hold the therapist in contempt if they don’t comply with the subpoena and the judge could still give penalties. And even if the judge doesn’t do that. The attorney can just ask the judge to reissue the subpoena as a court order. So, then the therapist still ends up with a court ordered subpoena, but now that therapist looks really unprofessional for having wasted everybody’s time. So, it really is just as important to respond to a subpoena from an attorney as it is from those that come from a judge.

Subpoena vs. Other Legal Requests

Kayla: So, what is the difference between, say, other legal requests, such as you talked about attorney record requests, but maybe even a request of law enforcement to give information. Like, how can a therapist know the difference and whether they are or are not breaching confidentiality, we’ll say.

Tracy: Yeah, so let’s talk about the differences. So going back to a subpoena, for example, if you’re a therapist of a client who has sought therapy, let’s say it’s related to workplace harassment or discrimination. Then you could be subpoenaed by the client’s attorney to provide information about your client’s mental health and the impact that that workplace misconduct had on your client. But now let’s imagine that it’s coming from law enforcement. These types of requests can take a lot of different forms. It can include a subpoena, but it could also be a search warrant. Or a specific court order. So, law enforcement requests are typically going to be more focused on obtaining evidence that’s related to a specific crime.

And so, subpoenas, while that’s a tool that’s used by law enforcement, it’s broader, and it can be issued by various entities, not just criminal investigators. To give you an example, let’s say you have a client who’s involved in a criminal case. Then law enforcement might request your records about your client’s mental state or their behavior, or really any statements that the client made during therapy that might be relevant for them to prosecute the case against your client.

And then there can also be records requests that just come from, say, an attorney. And these are typically going to involve just one party who’s seeking information from the therapist. So, it might include something like client records or communication logs, or really any other relevant documents. So, if it comes from an attorney, it’s really just sometimes the attorney doing some private fact finding. So, it may not necessarily be related to a legal proceeding. It could just be them wanting to know something about their client’s mental state or mental health. And so, they’re really just trying to kind of find out if they might want to subpoena you later on. So, for an example, imagine being the therapist of a child whose parents are in the midst of a custody battle. They’re trying to decide who the child should live with. Then what are both of the parent’s attorneys might request records from you as the therapist to give them some advanced information about your observations of that parent’s mental health, their ability to parent, and things like that. So, they can see if they want to subpoena you to testify. Or they might just want to find out what information you have that can help them best represent their client. So, in this scenario, you could receive the attorney’s request for your records or to speak with you. That’s not in subpoena form. Because they’re not asking for the information as part of a legal proceeding, at least not yet.

Kayla: That makes a lot of sense, and I just know that when I used to work in non for profits, I’ve had actually both an attorney record request that wasn’t a subpoena. And I’ve also had law enforcement trying to locate specific people who may or may not have been my client. And these were kind of some of the complexities that staff often used to have. It’s what do I do in this moment? Now, I always use the statement that I cannot confirm or deny that this person is or is not in this facility or is my client. But I think going back to the different types of subpoenas, it’s really the difference between a attorney record request versus an actual attorney subpoena. Am I right in saying that?

Tracy: Exactly.

Kayla: So, there’s two different things.

Tracy: That’s exactly right. Yeah, the records request is not going to be, again, part of a legal proceeding. A subpoena is going to be related to a specific case filing. So, they’re wanting something, whether it’s for a deposition, for some type of a hearing. It has a legal case behind it. Whereas an attorney’s records request is oftentimes just some fact finding for that attorney.

Types of Subpoenas

Kayla: Are there specific types of subpoenas that therapists receive? And I think you sort of touched on this, but.

Tracy: Sure, really subpoenas can come in two different forms. One is going to be for testimony and the other is going to be for the therapist’s records.

Subpoena for Testimony

So, if you get a subpoena for testimony, it’s officially known as a subpoena ad testificandum. And it compels the therapist to appear in court or some other legal proceeding, like a deposition, to give some testimony, and it might be to discuss the client’s mental health, or the therapeutic relationship, or really any relevant information that could be important to the legal case. When you receive a subpoena for testimony, then you need to go to the proceeding prepared to provide truthful and relevant information. And I’ll say it can be tricky to testify as a therapist, because you have to maintain the confidentiality of the therapeutic relationship, while also answering the questions honestly and to the best of your ability.

Subpoena for Records

Now, on the other hand, a subpoena for records is known as a subpoena ducis tecum, and it requires that the therapist produce specific records or documents about the client. So, this could be session notes or treatment plans. Or if you did any kind of testing, you had the results of those tests or any reports that were written. And really just any written information that’s thought to be relevant to the case. Now, when it comes to getting a subpoena for records, you need to carefully review the subpoena to ensure that you only give the information that’s specifically requested and nothing more. For example, if the subpoena asks for the client’s progress notes, you wouldn’t also include the treatment plan. Or if it’s asking for dates of treatment, then you wouldn’t include things like the length of the sessions or a diagnosis or anything else. And as a therapist, you do want to be aware of any relevant laws or regulations that govern the disclosure of mental health records in your jurisdiction, because some things are considered privileged and shouldn’t be disclosed.

Be aware also of contractual copyrights. For example, there are some standardized assessments that have it in the usage agreement that you’re not going to release the raw test materials, like, say, the test booklets that the clients might have written their responses in. Because given the years of work and expense that goes into validating test items, they don’t want the booklets to be anywhere where they could be viewed or copied or released publicly.

And you need to be aware that as a therapist, once you give records to the court or to the attorneys as part of a legal proceeding, your records become part of the case file. And that means that anyone who requests the file is going to be able to freely copy or share what’s in the file. So, you can’t comply with that type of subpoena request by just giving a copy of the records if it has those testing materials in it.

And I do want to say here that while the basic principles remain similar between the United States and Canada, when it comes to receiving subpoenas, there are some jurisdiction specific nuances. So, in the United States, for example, therapists have to be aware of state laws regarding the release of mental health records and preserving client confidentiality. And so, you might want to consult with legal counsel to navigate those requirements. In Canada, provinces and territories can have different rules and regulations regarding the disclosure of mental health information. So, if you’re a therapist in Canada, you want to be familiar with the applicable privacy laws and again, seek legal advice if it’s needed.

Kayla: I think all of that is such great information because when we think of, well, one, even the types of subpoenas, it’s understanding that there’s a difference between having the testimony versus our case notes. And something you mentioned that I didn’t think of was not to give more than that’s requested, right? Even hearing how many sessions were there and not saying the duration of that session, right? I think sometimes we want to put too much information in there because we want to protect ourselves, but really what’s happening is just give them what they ask for.

Tracy: Exactly. Otherwise, you’re going beyond the scope of the subpoena and you can be held liable for doing that as a therapist, if there’s ever a licensure complaint. So, give the most minimal amount that you can give that still complies with what is requested.

Get Legal Advice

Kayla: And I think the other thing that you said there that’s super important is if you do receive a subpoena is to get legal advice, right? This is not something that you want to do on your own. It’s something that really needs an expert in that area to help guide you so that you don’t share too much information. So that you only provide what you need to provide.

Tracy: Absolutely. And I think a lot of therapists think, “Oh, an attorney so expensive and it’s going to cost so much. And I think I can handle this and it’s fine.” But the reality is, if you’re practicing as a therapist, you likely have liability insurance, at least you should. And typically, I mean, I can’t speak for all of them, but typically, your insurance premium that pays for that policy has already paid for that attorney, because when you give them the notice of the subpoena, they assign an attorney. And that attorney fee will be paid for by the liability insurance policy, not from you, because you’ve already included that in your premium. And again, I can’t speak for all policies, but I’ve never in my 20 something years of doing this have ever seen that not be the case.

Kayla: Well, and that’s it. I hear it all the time. It’s like, you know, lawyers are too expensive. But like you said, if you have liability insurance, that liability insurance is why you’re paying it. It’s so that you can get that advice, so that you can get that support, so that you can ask the questions that you need to ask, so that you can protect yourself in your practice.

Tracy: Exactly right.

Considerations When You Receive a Subpoena

Kayla: So, if a therapist receives a subpoena, are there specific considerations that therapists should take when they receive a subpoena?

Tracy: Absolutely. When you receive a subpoena, there are a few things that you want to look at to make sure the subpoena is valid before you respond to it. So first you want to see who issued the subpoena? To see that it’s signed by a judge or a clerk of the issuing court or an attorney. Don’t assume it’s properly signed. I’ve actually had clients print subpoenas that they found on the internet and signed it themselves. And because the subpoena can’t be issued or signed by somebody who’s a party in the case, if the client who signed it’s part of the case, it’s not a valid subpoena. And yes, invalid subpoenas you can ignore.

And check too that your name is correct on the subpoena. Now I know this might seem obvious, but I’ve had it happen before where I was given subpoenas with somebody else’s name on it, so they weren’t for me.

And then you also want to check that the subpoena has a section that explains your rights and duties as far as responding, objecting, or asking to vacate or quash the subpoena. I’ve had cases where clients had a judge sign subpoenas that they created from one they found online, but they only served me part of the form, and so they were missing that text that explains the witness rights and duties. And because in my state, that information has to be there, the subpoena was invalid, and so I didn’t have to comply with it.

Now, some courts in the United States do allow a subpoena to be sent to the therapist by email or fax, rather than having to do a mailed copy or having it hand delivered. So, check your spam filters periodically, and check that the court system where the case is filed allows for that. Some don’t. But attorneys will still send the subpoena that way anyway. And if it’s not allowed in the court system, then you weren’t properly served and so you don’t have to respond to it if you don’t want to.

And one really important thing to look at is the time frame from when you’re served the subpoena and the date, you’re supposed to either appear to testify or to give your records. Courts in both the USA and in Canada have a minimum amount of time that’s required for that time frame to be. Like here in the United States, most courts have a 10 day or a two-week period. So, for example, if you’re given a subpoena and it asks you to comply two days after the date that it’s given to you, you likely have grounds to have the subpoena canceled because the time frame isn’t long enough. I’ve had subpoenas like that, and I’ve pretty much always been able to get them quashed or canceled if it wasn’t for, say, an emergency hearing.

Now, I do recommend that you familiarize yourself with the subpoenas that are issued by the courts in your area. You can oftentimes find a blank version of the subpoena online, as I mentioned, I see clients do that all the time, or one that’s part of a court file that’s been made public. So, you can check it out and see what a valid subpoena actually looks like for your area.

Steps for Responding to a Subpoena as a Therapist

Kayla: So, let’s take this a step further. Let’s say that a therapist receives a subpoena. What steps should they take in regard to responding to that subpoena?

Tracy: Okay, so first and foremost, first thing you want to do is just carefully review that subpoena. Again, check it’s valid, like I just talked about, but also check it for accuracy. Make sure the information is correct and that it matches the details of your client’s records. You want to look for any discrepancies and also, again, make note of that timeline that you have to respond to it.

And then that next crucial step is to consult with legal counsel. Again, your liability insurance company is typically going to have a way for you to notify them that you got a subpoena, and then they’re going to set you up with that attorney to talk about your options for responding. As I said before, that cost of the attorney is typically going to be covered in your policy premium. You’ve already paid, so use them as a resource. I want to add, though, that you want to make sure that the liability insurance company gives you an attorney who specializes in mental health law in either your U. S. state or your Canadian province. Because sometimes these companies will use attorneys from throughout the country, and there can be discrepancies from one state to another or from one province or jurisdiction to another. I’ve even had that happen once where I was given an attorney in Texas who gave me some advice, and then I found out that in North Carolina, it was a little bit different. And so what he was telling me I needed to do in response to records request wasn’t accurate for North Carolina. So again, ask them to specifically give you an attorney who knows mental health law and is relevant with the laws in your specific area.

And when you speak with that attorney, what you’re going to do is you’re going to review the scope of the subpoena to really understand what’s being requested. And you want to look for potential objections that you have to sharing your records or testifying. So, for example, if they ask for information that’s overly broad, or it’s irrelevant for the case, or infringes on the therapist client privilege. Then you have grounds to have either the subpoena quashed or canceled, or to have it more limited in scope or made to be more specific and relevant.

Now you’re going to want to discuss with the attorney if you’re actually going to provide what the subpoena requests. Or if you want to only provide a reduced scope of information, right? Or even if you want to quash or vacate the subpoena so you don’t have to produce anything or testify. Now we’ll say most therapists want to do the latter. They want to quash it, not have to show up, not have to give records. But that’s not always going to be in your client’s best interest. So sometimes just having that attorney file a motion to reduce what information you share is going to help balance that need for information in the legal proceeding with protecting the client’s confidentiality and preserving their trust in the therapeutic alliance.

After talking with the attorney, the next step that you’re going to take in most cases is for the therapist to inform their client about the receipt of the subpoena. And you want to discuss with them the potential implications of you testifying or sharing your records. Some ethics boards actually require that therapists discuss the potential implications and that they inform the client of the subpoena. So make sure you know what’s required of the board who governs you. It’s typically going to be written in their ethical guidelines. Now there are some cases where you might be compelled not to let your client know of the subpoena. For example, if it’s for a criminal proceeding. So, you’re going to want to, again, speak with an attorney to find out which is going to trump which, right? Whether it’s following the orders of the law not to inform your client of that subpoena or following your ethics board guidelines that you do inform the client of the subpoena. So, you want to talk to the implications of that.

And then finally, the last step is just to comply with the subpoena, right, if it’s not quashed. But again, be so careful to just provide specifically what’s requested in it. Give that most minimal amount of information that you can while still being compliant. Now, in cases where you have concerns about information becoming part of the client’s file, their court file, which is essentially a public record in most cases, you can request that information be given what’s called in-camera. Now, it doesn’t mean it’s being shown on camera, but rather what it means is that the information is going to be viewed by the judge privately and often by the attorneys at the same time, but it won’t be entered into the file record. So, this is a really good way to share documents that you contractually can’t disclose publicly like those standardized testing booklets that I mentioned previously, while still being able to comply with a request for records in the subpoena.

And just one last word of advice about steps to take is just make sure that you’re documenting everything. Be sure you keep a detailed record of your actions and any discussions you have with legal counsel. Any steps you take to comply with the subpoena, document it all. This documentation can actually be crucial if there’s any challenges after the fact about how you responded to the subpoena.

Kayla: This is so helpful. I’m just thinking, fortunately, and knock on wood, I have not been subpoenaed before. But if I were, after hearing you go through these steps, I actually feel more comfortable. And I hope listeners feel that same feeling, that, well, one, you don’t have to go through it alone, because you’re going to have your lawyer. But two, those steps don’t seem so scary once you know what they are, but when you don’t know what they are, it seems so overwhelming and so scary. So, I really appreciate you sharing those steps with us today.

Tracy: Absolutely, and that’s why I do this and why this is one of my favorite things to do is to really help therapists with this because it is scary. We don’t get training when we’re in graduate school or even post-graduate when we’re under supervision, we don’t really get training in how to do this. And this is one of the scariest things, I think, for therapists. Because there are some legal ethical implications and risks for therapists when it comes to these matters. And so, it can seem very overwhelming and very daunting. And I do know that online, I see the Facebook group conversations around this, and a lot of time, misinformation is shared by very well-intentioned people, but they might say things like, oh, if it’s an attorney, you don’t have to respond.

Well, as I said earlier, there are some reasons why you really do have to respond. In fact, there’s some states here in the United States where it is actually the law that a subpoena from an attorney is the same as a court order from a judge in those states. So, if they don’t respond to that because it’s from an attorney, it’s the same as violating a court order. So that’s why I really want to help educate therapists about this because it’s not so scary once you know what to do, but up front, it really can be intimidating.

Tracy: Yeah, and even going back to going into Facebook groups and asking these questions and receiving all this feedback. Actually, just yesterday, I was in a Facebook group and I saw someone had posted something similar. I can’t remember if it was about a subpoena or an attorney record request or what it was, but there was probably a hundred different answers, all very different answers that were getting posted. And if anything, that’s going to cause a lot more stress because you’re like, which one’s the right one? And the truth is, depending on which jurisdiction that the other person is in, they might all be right, but not necessarily right for that person asking the question. Because it’s so different state by state, and even our standards of practice and our code of ethics is different profession by profession, so–

Tracy: Exactly.

Kayla: –you know, all of this is to be considered into that process, I would assume.

Tracy: A hundred percent. Yep. You are absolutely right. So, I always tell people, check your jurisdiction. And I know that the therapists hate that answer. Like, don’t tell me to contact an attorney. I just want you to tell me what to do. I will say that these principles are pretty universal. They are pretty universal across the United States, even across Canada as well. A lot of these principles play out the same way. So, this is very relevant generally speaking to pretty much most if not all therapists.

However, there are some nuanced differences. And so that’s where you do want to talk with that liability insurance attorney and ask them the questions, read your ethical guidelines, read your state guidelines, they’re usually online somewhere, what the requirements are for these different things. So, take the time to read them and educate yourself. Again, that’s why I tell people always respond to a subpoena. If you do that, then you’re covered, right? Whether your state says you have to do it for an attorney or a judge, you’re covered, no matter where you are.

Responding, though, again, does not necessarily mean that you’re complying, right? So, if they ask for records, responding doesn’t have to be that you give those records. Responding can be that you file a motion to vacate it, right, to quash it. Or you file a motion to limit what you share. Or to have it be in camera. So, there’s a lot of ways to respond, but you don’t just want to ignore it.

Additional Advice

Kayla: That’s good advice. So, do you have any additional advice, insights or considerations for listeners with respect to receiving validating or responding to a subpoena?

Tracy: Not surprisingly, I actually do because testifying and sharing records, when you’re subpoenaed, it really can get a therapist in ethical or legal trouble, if they don’t know what pitfalls to look out for. So, I want to talk just for a minute about some of the most common ones that I’ve seen therapists do. And this way, your listeners are going to know what to avoid.

So, one significant mistake is giving privileged information without having the proper legal justification. You have to be so careful, so cautious that you don’t breach client confidentiality during your testimony or with what records you provide. And so again, this can happen if that therapist is sharing information that’s not directly relevant to the legal proceedings or that exceeds the scope that was outlined by the court. So, I know I’ve said this before, I’m going to say it again: always give the most minimal information that you can when you provide your documentation, and when you’re testifying. If a question can be answered in yes or no, then answer just yes or no. Don’t elaborate. Even if you don’t like the direction the attorney is taking the questions in. Or you don’t like how they’re using your yes or no responses, don’t elaborate. Just give them that simple yes or no.

And along those lines, don’t disclose any confidential information without the client’s informed consent unless a judge has compelled you to do so on record. So, ask your client to sign a release for you to share information that’s being requested of you. After you’ve talked to the pros and cons of you giving that information. Now, if the client objects to you releasing the information, then you want to let the court know you’re objecting to giving that information. And then the court’s going to have to specifically order you to release it. So, if you’re on the stand and your client did not give you a release of information to testify in the stand, you want to say that you want to say, I object to testify. I don’t have a release of information from my client. I’m going to need the court to compel me to. And typically, the judge will say, you are so ordered. And so now you’re compelled. And so now you’re under court order to do so, but that gets it on the record. So, you always want it on the record.

And another mistake that I see is therapists who offer speculative or what I would call opinion-based statements. You really want to stick to the facts of what you actually directly observed or assessed or heard and do not make guesses or offer opinions. Even if it’s in your area of expertise. So, to give you an example, let’s say you’re a child’s therapist, and the attorney asks you if a child’s recent return to bedwetting could be a form of anxiety. Now, even if you know that it can be, but you don’t know for a fact that that’s the case in your child client’s case, you should not answer that question. Now, it’s fine to state that you’re there as a fact witness, which means you’re there to testify about what you directly know about the client, and to say that because of that, you cannot answer that question. Now, I’m going to say here too, if you are a therapist for a child client whose parents are having you testify as part of a custody hearing, you can never, ever, ever, ever give an opinion about who the child should live with, about how much time the child should spend with each parent, or about the parent’s ability to parent the child, or anything along those lines. Did I say never, ever? I mean never, ever. And I’m emphasizing this here because it comes up frequently in family court cases. And it has landed more therapists than I can count in ethical trouble and licensure board complaints. So, unless you’re hired specifically to do a forensic evaluation for the family, which is also known as a parenting evaluation in some places, you do not have the information that you would need to objectively weigh in about the parents or who the child should spend time with. So don’t do it. And I’m going to say attorneys will just about always try to find some way to ask a therapist about that in these cases. So, you really need to be vigilant and don’t get walked into it or give any opinions about it.

And now another pitfall I want to talk about is avoiding becoming an advocate for one side of the case. You are there to provide this unbiased objective information. You’re not there to take sides or to advocate for a particular outcome. So, even if you believe that your client’s life would be best served by a specific thing happening in the case, you cannot give any kind of answers to try to sway it that way, by including some parts of information about something you’ve been directly asked about, while maybe omitting other relevant facts that are relevant to that legal matter. And in a similar vein, you want to be cautious about over identifying with your clients, or even letting your own personal biases influence your testimony. So that means, then, that you accurately represent the content and the context of all of your client’s communications with you, so that you’re careful not to misrepresent or even mildly distort anything. It’s really essential that you stay neutral and focused on that clinical information that’s relevant to the legal matter.

And again, I’m just going to wrap up here by saying I strongly advise you to consult with an attorney who specializes in mental health law when it comes to responding to a subpoena, right? Your liability insurance carrier is typically going to provide one for you as part of your policy so that there’s not a fee to you. And really having that attorney to provide guidance on navigating your ethical obligations, the legal requirements, and just strategies for protecting your client’s confidentiality is going to help keep you out of ethical and legal trouble.

Kayla: Amazing. I think all of this is so important and it’s so valuable to be able to know some of these steps. And again, like we mentioned earlier, this is not something that we’re taught in school. This is not something that we’re even taught outside of school. And outside of you, Tracy, I have not heard of anybody who actually focuses specifically in this area for therapists.

Checklist for Receiving a Subpoena

And I know because you’ve made this your passion and your mission to help therapists, you actually have a free resource that can help listeners take this step further. Can you share a little bit about this resource and how it can help listeners?

Tracy: Sure. It’s actually called the What Do I Do Now? The Therapist’s Checklist for Receiving a Subpoena, and it’s just like what it says. It really walks you through the steps that you want to take when you’re handed that dreaded subpoena, so that you can confidently navigate those initial steps.

And if you want to learn more, I also do offer a comprehensive online course, which has just about everything a therapist will ever need to know about getting a subpoena, handling records requests and testifying and legal proceedings. It also includes for continuing education credits from the National Board of Certified Counselors, and it’s called May It Please the Court Clinician Subpoenas and Testimony. And again, it is everything from when you get the subpoena to when you’re on the stand and what to do all along the way.

Kayla: Fabulous. So, to sign up for Tracy’s free resource, What Do I Do Now? The Therapist’s Checklist for Receiving a Subpoena, check out


Or you can simply scroll down to the show notes and click on the link.

And Tracy, if someone was interested in learning more about your course, how can they reach out to you?

Tracy: Absolutely, they can go online to and find the information on there. Or they’re always welcome to shoot me an email as well at [email protected] and that’s T R A C Y M A S I E L L O


Kayla: Amazing. Tracy, thank you so much for joining us on the podcast today and providing us these valuable steps and strategies for managing and responding to a subpoena for the release of a client’s therapy record.

Tracy: Thank you, Kayla. I want to express my sincere gratitude to you for having me on the Designer Practice Podcast. I have had a wonderful time chatting with you about receiving subpoenas, and I appreciate the opportunity to share my insights with your audience.

Kayla: Oh, thank you. And I am so grateful for you to be a guest here today.

And thank you, everyone, for tuning in to today’s episode. And I hope you join me again soon on the Designer Practice Podcast.

Until next time. Bye for now.

Podcast Links

Tracy’s free resource What Do I Do Now? The Therapist’s Checklist for Receiving a Subpoena:

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