This is a transcript from a presentation titled “Anatomy of a Subpoena” I gave to a group of therapists on June 6, 2017.
(Note: the transcript is edited, pretty heavily in some parts, to make it more readable and to clarify meaning. Don’t take anything in here as divorce advice. Get that from an attorney who knows your particular situation. And don’t take anything said here as ethical advice, either. Call your ethics counsel about your particular situation.)
Marco Brown: And so today I wanted to talk to you a little bit about the anatomy of a subpoena, and then how to talk to lawyers and judges (but mostly lawyers).
Okay, show of hands who’s had to deal with lawyers for their clients in the past?
Male Therapist: Both.
Female Therapist: I live with one…
Marco Brown: A couple of you?
Marco Brown: What’s that?
Female Therapist: I’m married to one.
Marco Brown: You are? I’m sorry about that.
Female Therapist: I didn’t mean to.
Marco Brown: So is my wife and I have lawyer friends, who are married to other lawyers, so I just think, ‘Man that’s like putting two cats in a bag!’
Marco Brown: I married an opera singer because she is entirely different and that’s a good thing.
Okay, and another show of hands, who’s scared to talk to lawyers?
Male Therapist: I don’t want to talk to them.
Male Therapist: They know more than I do. So…
Marco Brown: We’ll go through and we’ll talk about it.
So, a lot of the fear in talking to lawyers is you’re not lawyers and you don’t know how in the hell we do things, right? I mean seriously we speak another language, we do things entirely differently from you guys, we don’t understand your world that much and we don’t try to. You don’t understand ours and you don’t try to, so I want to go through this a little bit and assuage some fears, and we can talk about how to talk to lawyers and how to talk to judges.
So, let’s talk about a subpoena. We’ll go through all of the documents that you should receive when you receive a subpoena from a lawyer. And then we’ll talk about privilege and all these other things as we go along.
So, there are a couple of different types of subpoenas. This subpoena that I’ve given you is called a subpoena duces tecum. Duces tecum is a Latin phrase; it means that you give stuff to the attorney. Tangible objects or documents.
They’re other types of subpoenas, like a subpoena to appear and that’s asking you to show up at a certain place at a certain time for a hearing, with the court, for a deposition or for a trial. So these two things are very, very different. I gave you a subpoena duces tecum here. A subpoena to appear will essentially say:
“You (so and so) appear at this place, at this time for this purpose.”
And that’s what you do. The subpoena duces tecum, probably 95 plus percent of the time, this is what you’re going to get from an attorney. And it’s really a request for records. Go to the second page, this is the template we use when we send out for a psychological or therapy records. This the language we use to request the documents:
“All records, documents, correspondences (including correspondences with third parties) regarding below named person, call communication logs, notes regarding communications, evaluations, doctors . . . raw test data.”
On and on and on. So, the point of this is every single thing you have in the file. That’s what it’s getting at. And that’s essentially what you’re going to be asked for from any attorney who asks for anything.
I’ve also included a med provider records at the bottom because it actually talks about psych testing and psychiatric notes. But that doesn’t come to you; that comes to medical providers.
When you receive this, you have a certain number of days to respond to it, no matter how you’re going to respond, and we’ll talk about the different ways to respond.
Most of the time you’re going to receive 14 days to respond to a subpoena. This means you can’t, for the love of heaven, you cannot sit on a subpoena for 10 days and then decide to deal with it. Four days is never enough time to actually get done what you need to get done. So, deal with it right then and there, whether you give it to, and I don’t know what your procedure is, maybe give it to your supervisor, or give it to your . . .
Male Therapist: The procedure is that I, our assistant director I, work with them immediately to try to determine what we need to do with it.
Marco Brown: Okay, do that right off. You get it in the mail, you go and you do that right away because, again, bad things happen when you put it off. Sometimes you get twenty-eight days to respond, but that’s usually if the lawyer’s being nice, or if you have to appear. Most of the time you’re going to have 14 days to respond to a subpoena.
So, there are a couple of different ways to respond to a subpoena. One is to give the requested documents. Most of the time what’s going to allow you to just give the documents over is going to be the HIPAA release. This may accompany the subpoena. If the lawyer’s doing his or her job, they’re going to have a HIPAA release accompanying the subpoena. If they can get one, that is. A HIPAA release just allows you to release the requested records. Now the tough part for you guys, I’m imagining, is you have two people in marital therapy and they’re both convinced the notes will win their case, right? They never do.
Male Therapist: They’re always convinced we’ve have in our notes the other person is a mass murderer or something.
Marco Brown: Exactly. I’ve had the same thing on the other side. They say, “Oh, no, no we’re going to get this,” and they’re be absolutely certain that your client said that he molested a child. I say, “I really doubt that but, okay, go for it. It’s fine, go get the records.”
But you have this conflict, right, so you have one person sending in a HIPAA release and then you have the other person saying no, and they invoke the privilege. Let’s talk about the privilege for a second.
So, a couple of sheets back here we have the privilege. And what I mean by the privilege is what’s called rule 506. This is the Utah Rule of Evidence 506. Now this rule is going to be different than your ethical standards. I’m not entirely sure about the interplay of those two things. You would know better than I.
Male Therapist: State law says that the ethical standards of all our national associations is considered state law. And the statutes tend to add to that.
Marco Brown: Okay, I’m not going to speak to that then. I’m going to tell you what our Utah Rule of Evidence says about privilege. So, 506 allows a privilege for therapy sessions, doctor sessions, psychiatric sessions, these sorts of things.
Specifically, sub-section (c) – who may claim the privilege;
- the patient,
- the guardian,
- the patient,
- the person who as the physician or mental health therapist at the time of the communication, who is presumed to have authority during the life of the patient to claim privilege on behalf of the patient
So, you guys can invoke for your client and your clients can invoke as well.
Male Therapist: Can you define privilege more clearly for us?
Marco Brown: Privilege means that it’s a privileged communication. Which means that it can’t come out. You can’t force someone to testify to it in court, essentially. Nor can you force somebody to testify to it outside of the actual hearing or trial. It doesn’t come into the litigation, essentially.
Male Therapist: Unless you force someone to?
Marco Brown: Yes, and we’re going to talk about that in a second. Unless the privilege is defeated and when we go to subsection (d,) right there at the bottom of the page:
“No privilege exists under paragraph (b) in the following circumstances. Conditions as element or claim of defense for communications relevant to physical, mental or emotional condition of the patient and any proceeding in which that condition is an element of any claim or defense right after the patient’s death.”
Which we don’t really deal with. So, in any proceeding in which the condition is an element or claim of defense. So, most of the time the reaction we get from therapists when we want to go get records is, “It’s privileged.”
Then we say, “Yes, it’s true and there’s an exception to the privilege.” They don’t really understand what that means because they’re not attorneys. And this is really where it comes into play, especially in child custody cases. So, in child custody cases it’s assumed that one person wants the kid and the other person wants the kid. That’s why there’s a fight.
You’re mental health is always an element of a claim or defence. Just off the bat it’s part of that. So, when we come back and we want a parent’s therapy records because we need those therapy records to make sure that they have good mental health because we say they don’t, that’s an element of claim, so that defeats the privilege.
Now what I would imagine you guys should do is to claim the privilege anyway and then a judge will tell you, “No, you have to give it over.” Because then you’re not going to get in trouble. I mean if a judge tells you to give it over you’re going to be fine, right. If you give it up without talking to your client, that’s when you guys are going to get in problems.
Let’s move on. The next thing in the packet is a Notice to Person(s) Served with Subpoena. This is what the court wants attorneys to send people to explain how you go about answering a subpoena and what you can do. This is super-important to understand because therapists don’t get this:
“A subpoena is a court order whether it is issued by a court, clerk or by an attorney as an officer of the court. You must comply or file an objection or you face penalties of contempt of court.”
Let me tell you about what kind of the penalties are for not following a court order. I went through all of the different code sections statutes that deal with this and I think there are seven or eight different penalties, including fines of up to $1000, jail time up to thirty-sixty days, they can take your driver’s license, they can take your DOPL, they can actually take your professional license.
These are nasty penalties, but they usually don’t happen, but they can, so don’t mess with it. What you’ve got to realize, and a lot of therapists that I’ve talked to about this will send them something and they’ll say, “Well, I don’t have to answer because it’s not from the judge.”
Attorneys will respond: “No, no that’s not how this works. I get to send this out as a subpoena, and a subpoena is an order of the court, so you have to treat the subpoena as if it came from a judge.”
Male Therapist: Are there certain procedures that have to be followed? We had one circumstance, a couple of years ago, where we served with a subpoena and we contacted our liability insurance company to hire some attorney and the attorney said that we weren’t served this subpoena in the way that was required.
Marco Brown: Not served in the correct way?
Male Therapist: In the correct way. So they responded to it with that and said you’ve got to follow the correct way and they never got back to us on that one.
Female Therapist: What was the wrong way?
Marco Brown: They sent it in the mail, probably.
Male Therapist: I think they just dropped it off at the office, nobody signed for it. They had some runner come and it was slipped under our door or something like that.
Marco Brown: Yep. If I remember it correctly, it’s Utah Rule of Civil Procedure 4 that deals with this. The way you really should do it is somebody should personally serve.
Male Therapist: Yeah and that didn’t happen.
Male Therapist 2: So that means getting a signature and dropping it off, right?
Marco Brown: No, they just need to drop it off. Usually they have a processer come to your door and they say, “Hey, it’s a subpoena.” And then they walk away. Then the process server files an affidavit of service saying this is what I did and this who I gave it to.
If you get a subpoena they don’t have directly give it to you because you work here, so they can give it to any adult in the office. They can serve you with it or they can serve . . .
Male Therapist: Even if it’s just for someone else?
Marco Brown: Right, exactly, but that’s really how you should serve the subpoena. Now most attorneys don’t do that. Most attorneys just send it in the mail because it costs money to hire a processor, so we assume that everyone’s going to play ball when they get the subpoena in the mail. But, technically, you’re absolutely right. They really need to be served and there are a couple of different ways you can do it, but the most standard way of doing it is by having somebody physically come and actually deliver it.
So, if you want to do that that’s fine, just realize that most of the time when the attorney says, “You didn’t serve it correctly,” they’re just going to come back and serve it correctly, and then you’re going to have the same issue. It just depends on how you want to deal with it.
Okay, here in sub-section (2) it reads:
“If the subpoena commands you to copy documents and mail the copies to the attorney or party issuing the subpoena you must organize as you keep them in your ordinary correspondence of business or organize and label them to correspond with the categories in the subpoena.”
Usually there aren’t categories in the subpoena. They tell you to give them all the documents. I don’t know how you guys do this, but let’s assume you have a physical files with all the notes inside.
Male Therapist: It’s all electronic right now.
Marco Brown: Okay, well let’s just imagine you have a physical file with all your notes in it. What you do is you take that physical file, you take out the notes as you have them in the physical file, you copy them exactly as they are in the file, and you send them back to the attorney. So, you copy them just how you have them in your file.
Male Therapist: We usually just present them in date order, that’s how we keep them.
Marco Brown: Exactly, but it’s how you normally do it, and billing would be the same kind of deal. You have all of you billing statements chronologically, so print all that off and send it in. Just do it the way you normally do it.
(3) talks about appearing in person. When you have to appear, it’s going to be a hearing, a trial, or a deposition. They’ll give you a date and a time and an idea of what you are going to talk about.
And if you have to make copies and it’s voluminous and you really want the attorney to pay for them, then the attorney has to pay a reasonable fee for the copies.
Male Therapist: Usually when we’ve gotten them, they actually have included it in their form for us to return with them about how much time we’ve spent and how much it costs for the copies for them to reimburse us.
Marco Brown: That’s what we do.
So, now let’s get down to (6) and talk about objecting to a subpoena. You can object a few different ways.
One is if the subpoena doesn’t give you enough time to respond. So, if the subpoena says, “In seven days you must produce all the documents,” that’s not fourteen days, and they have to give you at least fourteen days. You can object to that.
Another reason to object is the subpoena requires you to appear for deposition in some place way outside your county. In Utah they can’t make you do that sort of thing. If you get a subpoena to appear in New York to testify, I guarantee New York doesn’t actually make you fly out there.
Another reason is the subpoena requires you to disclose privileged or otherwise protected matter and no exception or waiver applies. Okay, so the waiver is the HIPAA and the exception is the exception in Utah Rule of Evidence 506 that we talked about.
Again, I think the best course of action for you guys is just to say, “No.” But when you do this, when you say, “No,” you have to do it in a specific way.
You’ll receive what’s called an objection to a subpoena. And it’ll give you a checklist of the ways you can object.
When you object, you have to meet one of these requirements. So, go through all of them and see exactly what they are, but your objection has to meet one of these requirements.
I remember I got, I got an objection from therapist that said, “Giving you the documents isn’t good for my client.” That’s literally what they wrote and sent it back to us. And we wrote back and said, “Hey, I appreciate that I know that you think that’s a really tough case but that’s not a legal objection, and you can’t not give it to us because of that reason.” At that point the therapists kind of shut down.
You have to realize that that sort of thing is not okay. You can’t object because it’s not great for your client.
Another reason for objecting is undue burden.
There are a couple of other things that never really apply to therapists in there, but that’s how you object to a subpoena.
Female Therapist: What’s a specific example of an objection that works?
Marco Brown: Oh, “My client hasn’t released the privilege, “I’m invoking the privilege for my client,” or “My client has invoked the privilege.” Those work.
Male Therapist: That’s what we usually claim. The most common circumstance for us is a custody battle and both parents are part of the process and one of them refuses to release the information. The other one has signed a release and the other one won’t, so we say, “We don’t have permission from both parties involved with them are all over the notes.” We could redact everything and hand them some black pages.
Marco Brown: Which we’ve had before. It’s like it’s someone at the CIA.
So, let me kind of walk you through what happens when you object. You object, then the attorney will file a motion to compel. The motion to compel really means, “I know I gave you a subpoena and you objected to it, but I really want these freaking documents.” When you get the motion to compel, you say, “No” again and you invoke again. Then what the attorney needs to do is go back to the court, go to the judge, and file, very likely, either an order to show cause. This is essentially saying to the judge, “Judge, I can’t give these documents, they won’t give them to me, and here’s why I need them, and here’s the exception to the rule that allows me to get them.
So, that goes to the judge. Now you guys you should get notice of that sort of thing because, essentially you’re a party to the case right now over this one issue. You should get notice of this. The attorney should send these motions to you and you should know when they’ll be heard by the judge.
If you want to you can come to the hearing and say, “No, here’s why I didn’t give them and here’s why they shouldn’t be given.” I never had a therapist actually do that, and I don’t even think I’ve had a therapist’s attorney do that either. Therapists usually say, “Okay we’ve invoked, now it’s going to go to the judge for a decision and if the judge comes and says we have to give them then we’ll give them, right, because then we’re compelled by a judge and a specific order.”
And then the judge says, “Yes, you can get these documents.” At that point, there’ll be an order from the court, and the attorney will send you back the order from the judge. That’s really when it comes to a head and you . . .
Male Therapist: It’s non-negotiable.
Marco Brown: Yeah, you can need to talk to your counsel and see what you want to do about it, but 99% of the time they’re just going to say, “Okay, the judge said these specific things in this specific instance, so I’m going to give over the records.”
Now, whether or not when you object the attorney ever does anything, that is another matter entirely.
Male Therapist: Most of the times when we’ve objected the attorney just figures, “Okay these guys are a little more put together than we expected. It’s going to be too much of a hassle to try to get any more information.” We just don’t hear from them again.
Marco Brown: The thought process is this: it’s going to cost X dollars to get these records, and maybe our clients don’t want to pay that.
Again, how we do it is there’s an objection, then we go back to the judge, get the order and then you guys really do need to give those docs.
So, that kind of takes us through the subpoena process and the objecting process. Now, let’s talk about how to talk to an attorney.
What I’ve usually seen from therapists is attorneys send you stuff, you get freaked out about it, and you tend to kind of back off. Backing off means non-communication.
The worst thing you can do to an attorney is not to communicate, because that just bugs the snot out of us, and we come on stronger because we have authority to ask for these things, and you’re challenging our authority. We’re attorneys and we’re like herding cats, so we don’t like that sort of stuff.
Talk to the attorneys. Ask them, “What are you really trying to get? Do I really need to give you all these things? Is there a specific thing I can give you? What are you looking for?” Create a little bit of a dialogue with them. Obviously, do this within your ethical rules. Don’t be giving up information willy nilly, but communicate with the attorneys.
And then the other way to do it is to go to your insurance carrier, maybe to get an attorney, who then talks to the other attorney, and then we can all speak our lawyer language amongst ourselves. That tends to work better for attorneys.
Male Therapist: Which the insurance carrier will do, or we’ll pay for, but we found it’s worth it to have an attorney helping us so.
Marco Brown: Exactly. When you need a root canal, don’t do your own root canal. Go get a dentist.
So, my recommendation is go get an attorney to talk to the other attorney. But whatever you do, create a dialogue, otherwise if you back off and don’t talk to us at all, it just got worse and worse and worse.
For example, I had to subpoena a therapist and a clinical director because nobody would talk to us. We sent them subpoenas to appear in court along with appearance fee checks. They came into our office and gave us the cheques back and said, “Well, we’re not coming to court.”
And I said, “You have to come to court.”
They said, “No we don’t. We’re not coming to court, but here’s your money back.”
I had to re-send the checks in the mail. They just walked out the door and then I resent them in the mail, and they didn’t show up at court. I ended up getting contempt charges against the therapists because they wouldn’t talk. I said, “Please talk to us,” and they just wouldn’t. And I said, “Please, have an attorney talk to us. It’s okay, just go get counsel. We can talk through this.” They wouldn’t engage. That’s the worst possible thing you can do.
Male Therapist 2: Yeah, it’s crazy that they’re going to risk their livelihood.
Male Therapist: Well as therapists we’re so afraid of disclosing confidential information. We really think that if just say, “Well, no it’s confidential,” that protects us in all circumstances and the law doesn’t say that’s the case.
Marco Brown: What you said is totally true. They were scared because they didn’t know what to do, and they figured it was better not to do anything than to do something. Just create that dialogue; that’s going to be better than anything else that you can possibly do.
When it comes to judges, when a judge tells you to do something you do it right then. Ignoring an attorney you can understand, but when a judge tells you to do stuff, you do it.
Little hint: when you go in to testify on a case, it’s going to be like nothing else you’ve ever experienced before because you’re going to have an attorney there asking you questions and then cross examining you. And the cross examining attorney is going to go after you hard. When I go after therapists, I go after them hard on cross because it’s just the way I am.
Male Therapist: Well, it’s your job, right?
Marco Brown: Exactly, it’s my job, so I go after psychologists or therapists. Psychiatrists are my favorite. I love psychiatrists because they all think they’re God, right, and I love going after them.
You have to realize that being in court is a totally different world. When you get up there, you’re going to be nervous. Realize that that nervousness is going to wash out of your system after about ninety seconds. It’s like speaking in public, right, you have that big adrenaline rush and you think that everybody can see your emotions through your face and through your body and they can’t. After ninety seconds that starts to wash out of your system. The other thing that tends to happen to people that don’t testify that often is you get nervous. You should get nervous; it’s a natural reaction. But we tend to talk too much and talk too fast when we’re nervous. You just use too many words, and when we use too many words you say dumb stuff. So, if a lawyer asks a yes or no question just answer it yes or no.
Male Therapist: Just shut-up.
Marco Brown: Exactly, and then be quiet. But the tactic that lawyers use a lot of times is, and I do this all the time, I’ll ask somebody a yes or no question and they’ll answer yes or no, then I sit there and wait. They’ll get nervous and then they start talking about all of this other stuff they normally wouldn’t talk about. I just sit there for five, ten, fifteen seconds and they’ll start talking because they want to fill the space. Don’t do that. If it’s a yes or no question, answer yes or no.
If they ask you something and you don’t remember say, “I don’t remember.” Okay, take the Ronald Reagan approach and just say, “I don’t remember” and leave it at that.
Answer with as few words as humanly possible. If they ask you a yes or no question, and you want to say more and they won’t let you say it, then that’s when the other attorney is there for, to ask you other questions. You don’t have to fight with the attorney when you’re on the stand because that makes you look weak and makes you look odd to the judge. That’s not good. Just realize the other attorney can ask questions so you don’t have to battle with the attorney cross examining you.
Those are a few pointers on when you actually have to go in and testify.
Female Therapist: The licensing exam is still fresh on my mind and I remember prepping for that and one of the things that struck me, it just kind of stuck, was that to push back on testifying until the judge forces you basically.
Male Therapist: Actually tells you to do that?
Male Therapist: That’s what we’re, as a therapist we’re kind of trained to do everything in our power to not release information as long as humanly possible.
Marco Brown: And that’s a tactic, right?
Female Therapist: I just wondered what you had to say about that?
Marco Brown: What I can say is if you ask a barber if you need a haircut, the barber is going to say, “Yeah, you need a haircut.”
Right, so I’m always going to tell you that, “Yeah, you’ve got to give me the information I want,” because I’m an attorney. I would think if I’m in your shoes though, as a therapist, I’m going to say, “No” because once you testify it ruins your relationship with your client, right?
Male Therapist: That’s the rationale that we get trained on is that if you show that you have tried to protect your client’s information, you’re protecting the therapeutic relationship by showing you’re advocating to protect their confidential information. If you didn’t try to protect it are you sabotaging your therapeutic alliance with them?
Marco Brown: I think there’s a lot of logic to that and I think that’s probably correct. If I’m sitting your shoes I think that’s right.
Male Therapist: But it doesn’t mean we can just ignore it.
Marco Brown: Exactly. That’s exactly right because we have the power as attorneys. I think you’re right to do exactly that, and sometimes you’re going to have a situation where that’s not going to function, but I would imagine if I took a survey of therapists in Salt Lake and how many times they ever had to testify during their career maybe it’s one. So, it’s just not going to happen very often.
Female Therapist: So, take the other side and what does the pushback look like?
Male Therapist: The pushback from the attorney?
Female Therapist: From our side.
Male Therapist 2: The pushback to the client, how do we..?
Marco Brown: How do you mean?
Female Therapist: To not testify.
Male Therapist 2: To avoid testifying.
Marco Brown: Oh, how do you avoid testifying? You invoke every privilege and get an attorney.
Female Therapist: Okay.
Marco Brown: Obfuscating is a great tactic for not testifying.
Male Therapist 2: Draw it out?
Marco Brown: Yes, drawing it out as long as possible. Only 1-2% of divorce and child custody cases go to trial and it’s usually . . .
Male Therapist 2: That’s not very much.
Marco Brown: No, and it’s not much at all because people realize . . .
Male Therapist 2: Cost?
Marco Brown: Cost, right, cost is prohibitive in most cases, and there’s only a certain set of circumstances when you do spend that money. It’s a specific set of circumstances where you’re really fighting over kids. People negotiate and they almost always come to some sort of middle ground, but the 1-2% are just those cases where it doesn’t function. And it’ll take you on average between a year and two years to get to trial.
Most of the time you guys get involved at the beginning of a case when people are trying to figure stuff out. We’re trying to do our discovery and information gathering and that’s when you guys come in. Just realize that if you say, “No,” only 1-2% of cases are ever going to go to trial, so the vast likelihood is you’ll never actually be called to testify.
And of those ones you think, where you get a subpoena to appear at trial to actually testify, you have to realize that the vast majority of those are actually going to settle before you go to trial. So, even if you get way down in the process you’re still not going to testify.
On the other hand, there are some therapists and custody evaluators that testify all the time. So, you know, we use a guy named Todd Dunn for custody evaluations. He’s down in Utah County, great guy. Val Hale, she doesn’t deal with us anymore but she used to. Natalie Malovich. All these custody evaluators, they’re in the thick with us and deal with attorneys all the time. They have these horribly contentious cases. Most of these guys only testify once or twice a year. So, even the people in the thick don’t really testify all that often.
Female Therapist 2: And that brings up something else I had a question about. I recently went to an ethics training and they talked about someone had their license revoked, or some kind of consequence, for giving an attorney information that could be seen as being a custody evaluation when she wasn’t.
Marco Brown: Oh, yes.
Female Therapist: She was the evaluator so how do we handle that kind of situation if ever an attorney is wanting that kind of information?
Marco Brown: Okay, so my understanding is, and you can correct me if I’m wrong, but you have an ethical rule that states you cannot give a recommendation for custody or parent time unless you’re actually hired to do that sort of thing.
Male Therapist: And it actually specifies we have a therapeutic contract with them, we can’t do that, because we’re considered biased.
Marco Brown: Yeah, exactly because it’s a conflict.
Male Therapist: We can’t even say, “I think it would be for the best for this kid to spend time with their mom and their dad.” We can’t say that. DOPL will come after you for that.
Marco Brown: They certainly can. The worst offender of this is LDS Family Services. They mean well, but they shouldn’t do it.
And don’t do that sort of stuff because it’s not going to make a difference. I’ve had this happen before. I had a therapist, quack of a therapist, who works with one attorney all the time and everyone knows it. Anyway, he came in and gave a recommendation, and it didn’t even come in because the first thing I said to the judge was, “This, here’s where it violates the ethics, so we can’t even look at this recommendation.”
And the judge said, “You’re absolutely right.” So, it’s not going to come in anyway. Just don’t do it.
Female Therapist: So just respond saying that I’m not qualified to do that?
Male Therapist 2: You can lose your license over something that’s irrelevant to the case?
Marco Brown: If they ever ask you for that sort of thing say, “My ethical rules don’t allow me to do that.” You’ll be fine.
Now what I’ve seen happen, and what I think is totally acceptable, is when, for example, there’s a young girl and at dad’s house there’s a step-brother who molested her. You’re giving therapy to this girl and the lawyer says, “Hey, I’d like you to write something to talk about the trauma she’s suffered and talk about therapy.” Everyone’s fine with you disclosing the information, so you write
“Yes, I believe my client was molested. I believe this happened and here are the effects of this. If she were to go back over to that house and stay with her abuser, these would be the negative effects that I would imagine might happen to my client.”
That, I think, is totally legitimate. I’ve never had a judge say anything bad about that, and I’ve never had DOPL come down on anybody about that.
What you can’t do is say, “My client should never go to dad’s while this guy is there.” That you can’t do, so have to work around things a little bit and stay on the good side or your ethics.
Female Therapist: So, if we’re approached by a custody evaluator with a signed a release, should I answer his questions?
If I answer, and I giving information to the attorney’s that I shouldn’t? Where do you stand in all of this?
Marco Brown: I think you have the same ethical standards when it comes to custody evaluators as when it comes to anybody else. You’re releasing information to a third party. You have to assume that information is going to come back to the attorney and the judge.
If the case goes to trial, if after we get through what’s called a 4903 conference where he gives his recommendations and we mediate the case, if that doesn’t work, then we go to trial. The attorneys, if they’re worth their salt, are going to subpoena all of the custody evaluator’s documents from the case file to make sure that he’s on the up and up and hasn’t missed some data that’s a big deal.
They wan to make sure the evaluator’s making correct recommendations based on the date, so if you give him docs or you tell him things and he writes them down, that’s going to come to the attorney’s through the subpoena. And there’s no way that he gets around that subpoena. There’s absolutely no way. All the custody evaluators give us all that stuff because the judge is going to give us all that stuff.
Maybe I should explain this. A custody evaluator’s almost always a Ph.D. or LCSW. People going through evaluations are taking MMPI-2s. Evaluators do all the background checks, the criminal background checks, they read all the pleadings, they go talk to everybody under the sun, they have clinical observations and home observations, they talk with all the therapists, get all the therapy notes. They do all of this stuff.
From this, they get this kind of global idea and come up with recommendations. That’s what they do, so they really have to dig deep and they’re getting paid to dig deep. If they don’t, we’re going to beat the snot out of them at trial. So, they’re covering themselves by digging super deep, and that means they’re going to make you feel uncomfortable when they ask you questions.
Female Therapist: Well let’s say I did have something, I’m not about to tell some guy over the phone? Maybe only one parent’s signed a release for me to talk.
Marco Brown: See, both parents should sign a release because a custody evaluation order tells each parent to sign a release so the custody evaluator can talk with the therapists.
I think the principle here is, and you can tell them if I’m totally off on this, the principle is that you talk to them in the exact same way you would talk to anybody, any other third party.
Female Therapist: Yeah, okay because I don’t want to answer a question I’m not authorized to answer.
Female Therapist 2: I have a question. What if you get sued, say, if a client commits suicide, and the client’s family sues you. That would rattle me and I might want to get out of doing therapy. Do you have any thoughts on a situation like that?
Marco Brown: That would suck. I’m sorry for anyone that has to go through that. That’s probably a wrongful death case. I would imagine that’s how it comes in. I don’t know anything about wrongful death cases . . .
Female Therapist 2: Do you see this much? Do you deal with this kind of thing much?
Marco Brown: No. We just do divorce and child custody cases, but I can’t imagine a case like that would go anywhere. My understanding of the legal standard is it’s so onerous and so high for a therapist to be held responsible for anything that it just never really happens.
Male Therapist: Well we’ve got some pretty good policies in place showing that when we are worried about anything that could lead to anything remotely like that, that we’ve consulted with someone else in the group, I guess, the supervisor. We’ve documented their attempts. So, we’ll have a paper trail, as long as we follow those procedures, to protect ourselves from that kind of exposure.
Marco Brown: What’s going to happen, very likely, is you have insurance as a professional. So, she has malpractice insurance, so the malpractice insurance carrier’s going to get you an attorney, who will then settle for some amount because insurance companies don’t want to go to trial.
Again you therapists, you all hate attorneys, and that’s okay. I get that. So, when you’re part of that litigation process, especially when you’re personally part of, it sucks. If I were to get sued, it would keep me up at night, and I’m an attorney.
Female Therapist 2: I think documentation for us is key.
Female Therapist 1: Exactly.
Male Therapist: Let’s talk for a second about guardian ad litem responsibilities because. It’s pretty common that they’re reaching out to us for information.
Marco Brown: Yes, so guardians ad litem, just so you know there are a couple of different types.
There’s a public guardian ad litem and a private guardian ad litem. Public guardian ad litem’s are state employees who investigate child abuse and endangerment cases. They’re usually on child protective orders in the juvenile courts. They used to go in the district court, which is the Utah’s court of general jurisdiction, but they don’t do that anymore. They changed the law about five years ago.
So, the people that go in district court go in really high conflict divorce and child custody cases are actually private attorneys. I used to do that work, but I don’t do it anymore. Private guardians ad litem call therapists all the time because we’re expected to call the therapist to conduct an independent investigation. Independent of the dad and the mom because we’re the kids’ attorney. We’re doing this independent investigation so that we can give recommendations to the court.
Male Therapist: On behalf of the kid, right?
Marco Brown: Exactly. So, I called therapists all the time and talked to them. And it’s fine because therapists, you know, don’t like attorneys but they would talk to me because I’m the kid’s attorney.
As far as you guys are concerned, I have to imagine that it’s the same sort of deal as a custody evaluator because you’re talking to a third party, and you’ve got to realize that what you tell me may very well come out in court. If you told me, “Yeah, I believe the kid that dad beats him up,” I have to go and tell the court that. That has to be part of my recommendation, otherwise I’m not doing my job correctly. So, you have to realize that what you tell the guardian ad litem could very well come out in court, so you’ve just got to treat it like everybody else.
Now, the nice thing about it is when there’s GAL, a guardian ad litem, on the case, almost always you’ll have releases from both of the parents because they have to provide them. But I’d get releases from both of the parents and then tell your client, “Hey, I’m going to talk with this guy, you know, I kind of have to, and I’m going to tell him things and who knows maybe that comes out in court.” Have that conversation with your client.
Male Therapist: No, so how would you differentiate, or does it matter if we know if this person is a publicly hired guardian of litem or a private one?
Marco Brown: Well, it doesn’t matter. For the purpose of gaining information, it doesn’t matter if they’re public or private. I just wanted to say that because there are just different types. Maybe the way they interact is going to be different. The public guardians ad litem are like public defenders; they have a thousand cases. They’re going to try to call you once and probably never call you again.
Male Therapist: Last thing, you’re available if we ever have a circumstance it’s not uncommon for us to have clients who, maybe a couple who we’re working with, they’ve decided if they’re going to divorce. I always counsel in that situation let’s help you co-parent well together, often they’ll go together to try to do divorce proceedings or we have gotten individual client maybe who’s looking for an attorney, you know, you’re available to take cases, right?
Marco Brown: Divorce and child custody is all we do. Well I do one other odd thing because I worked mental health before I became an attorney, so I was actually going to become a clinical psychologist. My grandmother was a psychologist and a professor, and I was going to be a clinical psychologist. Then I realized that I had to go to too much school so I’d became an attorney. Divorce and child custody is all we do with the exception I do guardianships as well for mentally incapacitated adults really. That’s about one-half of one percent of our cases, but 99% of what we do is divorce and child custody.
If any of you have questions, anything, just call me. You can call me and I’ll answer. I want to be a resource for you guys. If you have a question about divorce or have a question about procedure, I’m here for you.
Male Therapist: They do and sometimes they’re experiencing significant symptoms as a result of an assumption they’re making that we don’t know if it’s founded or not. And they’ll say, “Oh, I’m sure that this is going to happen…”
Marco Brown: They go on the internet, or Aunt Jane has some friend who got divorced five years ago and got $100,000 a year in alimony, or something like that. So, they’re sure that they’re going to get this $50,000 a year in alimony. You have all this stuff out there.
If you have those questions, call me. I’ll talk with you guys.
Female Therapist: It’s interesting you say only 1% or 2% go to court because I think I have 3 or 4 that are divorce cases and all of them are going to court now, so.
Marco Brown: Oh, they go to court, but they don’t go to trial.
Female Therapist: Oh trial, right. They’re all waiting for trial.
Marco Brown: There’s a process before it actually goes to trial, yeah.
Male Therapist: It is not uncommon for me to get requests for help from an attorney, from a client. You know, we have to be careful, obviously, when we’ve got a couple and one of them call us and says we’re going to get divorced so can you give me an attorney and we have an obligation to both of them. That’s obviously complicated. The one’s where we tend to make a referral, or we’ve just been working with one person individually and they’re meeting’s alone. And I love referring to people I have met and have some level of confidence that, you know, they’re a reputable person.
Marco Brown: Yeah, exactly, but yeah if you have therapist friends who you think would benefit from this, I’ll totally go out and talk to them.
Last thing, we’re redoing our website right now and part of the new website is going to be a forum in which people can come and ask us questions. We’re not going to charge them for it, but if they want to sit there and type a question out, and then we’ll respond to it. It’ll go out on the internet for people to see and act as a resource. So, if your clients want to ask a question, you can say, “Hey, you can go to this forum and ask a divorce attorney.
Male Therapist: And I put this website on the agenda for today.
Marco Brown: Okay.
Female Therapist: Will you leave cards?
Marco Brown: Yeah, I’ll leave cards.
Male Therapist: And his office is just on 90th and 7th.
Marco Brown: So again, if you have questions, feel free to give me a call. Thanks, everyone. It’s been great.
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