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Subpoenas, Court Orders and the Trusting Relationship
Carolyn Stone, Ed.D.
Wednesday March 01, 2006
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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Hansen has been in and out of foster homes all his life. In the three years you have known him, he’s been in three questionable foster homes. He has a difficult time trusting adults and is guarded. You have painstakingly built a bond with Hansen, and even though it is a fragile bond, it is probably the strongest bond he has formed with an adult. One of Hansen’s former foster families is being investigated for receiving and selling stolen property, and you receive a subpoena from the prosecution to give testimony about your confidential conversations with Hansen. Hansen was, in the words of the prosecution, “noncommunicative and evasive” in his deposition, and the attorneys are hoping you learned more from him about his time in this home. What are your legal responsibilities to the court? What are you ethical responsibilities to Hansen?

Privileged communication, a creature of state statutes, renders school counselors incapable of testifying regarding their students’ confidences. School counselors are required to give their testimony in court unless their communications are considered privileged by their state statutes. However, ethically, even if a school counselor is required by state statute to testify, there are steps that can be taken to try to protect student confidences and to stay out of court proceedings. Consult your state statutes, school board attorney or your professional counseling organizations to see if you have a legal obligation to breach confidentiality when subpoenaed by the courts. Even if you are required to testify, consult with the attorneys in the case to see if one is willing to issue a motion to quash the subpoena. A motion to quash makes the subpoena null and void. Inform the attorney that you do not have any information to help his case (if this is true).

In the case of Hansen, if you are unsuccessful in getting the subpoena quashed, then appeal to the judge assigned to the case to support your efforts to honor Hansen’s confidences. Quote your ethical codes, which support you to safeguard his confidences. Discuss with Hansen the possibility of having to testify about his conversations with you. You could discuss with the judge the fact that this child has never had a trusting relationship with an adult until you came along and you don’t want to do anything to jeopardize that relationship. If the situation is such that you need to go the extra mile, then seek research on abandonment issues, foster care children, children like Hansen and use whatever means you can, such as letters and phone calls, to get attention to the fact that you cannot be called on to be one more adult who, in Hansen’s mind, fails him. If you have case notes, you could ask the judge to allow only select case notes to be used. You can also advocate to seal sensitive information. You can request an informal conference with only the judge in court chambers.

There are few one-size-fits-all responses to any subpoena, but you do have options. Competent members of the legal profession cannot fault school counselors for advocating and getting a bit stubborn on behalf of their students. However, at the end of the day, if all else fails, we must testify if our state says the courts are entitled to our testimony.

Court Orders vs. Subpoena
In the Hansen case, you were subpoenaed by the prosecution’s attorney. Is this different than receiving a court order from a judge?

A court order is issued by a court requiring a person to do a specified act such as produce material and/or appear in court. If school counselors are ordered to provide the court with information, they must provide the necessary documents or oral information, unless they are protected by a privileged communication statute in their state.

A subpoena duces tecum, on the other hand, is a court order issued by a clerk of court, justice of the peace, notary public or lawyer, usually signed by a lawyer, requiring a specified act from the recipient such as an appearance in court to answer questions about something witnessed or heard or to produce records as evidence. Although both documents require a response from the school counselor, legal counsel may be more successful with a motion to quash a lawyer-signed subpoena than a motion to reverse a court order. Always seek help from your school board attorney before responding to a court order or lawyer-signed subpoena.

Most often when school counselors are pulled into legal proceedings it’s a custody battle. What do we do in these custody cases when one parent wants us to testify to win his or her position?

When you receive a subpoena to appear for a deposition in a custody hearing, must you give a deposition legally? Are there any ethical considerations you need to make in this situation? When ASCA members were surveyed about this situation, all respondents agreed they should try to avoid having to take sides in custody issues and the focus should be on the student rather than the parents. Kevin Quinn, ASCA Governing Board member, sums it up by saying, “I certainly want to protect the child, yet we rarely have all the information to know for sure what is best. The rapport and working relationships with the student is a critical consideration in any deposition, and school counselors must do whatever they can to protect the integrity of their position. To be swayed by one parent and placed in the middle is not where the school counselor wants to be. Picking sides is not a win-win situation.”