Therapist and Attorney: Working Together to Support a Client Through a Civil Case

When a client who survived a troubled-teen program or other institutional abuse decides to bring a civil case, two professionals end up in their life at the same time: a therapist and a lawyer. Done well, that pairing can make the process steadier for the client.

This article is for California mental health professionals, including LMFTs, LCSWs, LPCCs and psychologists. It covers consent, roles, deposition support, pacing and subpoenas.

Start with consent and a clear release

Nothing about your client should pass between you and the attorney without a signed authorization from the client. That includes confirming that the person is your client.

The CAMFT Code of Ethics (Standard 2.1) says therapists do not disclose client confidences, including identity, except as the law mandates or permits, or with prior written authorization. California's Confidentiality of Medical Information Act (Civil Code section 56.10) generally bars disclosure of medical information without authorization, and section 56.11 sets out what a valid authorization must include.

A good release is narrow: it names the attorney, the purpose, the information covered, and an expiration.

Psychotherapy notes need their own authorization

Under HIPAA, "psychotherapy notes" are a defined category (45 CFR 164.501): notes a mental health professional records documenting or analyzing the contents of a counseling session, kept separate from the rest of the record. The definition excludes medication monitoring, session times, modalities and frequency of treatment, clinical test data, and summaries of diagnosis, functional status, treatment plan, symptoms, prognosis and progress.

Under 45 CFR 164.508(a)(2), a covered entity generally must obtain an authorization for any use or disclosure of psychotherapy notes, with limited exceptions. Under 164.508(b)(3)(ii), an authorization for psychotherapy notes may only be combined with another authorization for psychotherapy notes. In practice, a general records release should not be treated as covering psychotherapy notes.

What the attorney needs, and what stays in therapy

A client's lawyer usually does not need, and should not ask for, the substance of therapy sessions to evaluate a case. What may help, with consent:

• Dates of treatment and the general nature of services.
• Whether the client is in active treatment and how to reach you if a safety concern comes up during the case.
• Your sense of pacing: whether a hard milestone should be scheduled with extra support around it.

What generally stays in therapy:

• The content of sessions, unless the client chooses otherwise or the law requires it.
• Your working hypotheses, process notes and the client's private reflections.
• Anything the client has not authorized you to share.

If the client claims emotional injury in the case, California Evidence Code section 1016 provides that the psychotherapist-patient privilege does not apply to communications relevant to that issue. That can bring some of the record into the case. The scope of what is relevant may be contested. The client's lawyer handles that fight; your role is to protect the record until disclosure is properly authorized or compelled.

The Utah version of these questions is covered in the Utah article on therapy records, privilege and subpoenas.

Treating clinician vs. retained forensic evaluator

These are different roles, and keeping them separate protects the client and the therapy.

• Treating clinician. You provide care. If you are ever asked to testify, it would usually be about the history, diagnosis, treatment and progress you observed.
• Retained forensic evaluator. A separate professional hired to evaluate psycholegal questions, such as the extent and cause of injury, and to offer opinions for the case.

The APA's guidelines for forensic psychology describe providing both forensic and therapeutic services to the same person as a multiple relationship that can impair objectivity or cause harm, and encourage practitioners to disclose that risk and refer one role elsewhere. The guidelines note that testimony about a patient's history, mental status, diagnosis, treatment and progress would not ordinarily be considered forensic practice. They are aspirational, not mandatory. The CAMFT Code of Ethics (Section 10) similarly asks therapists to distinguish the treating role from a forensic role and to clarify role expectations and confidentiality limits.

If a lawyer asks you to give opinions on causation or damages for the case, it is reasonable to decline and suggest a retained forensic evaluator.

Preparing the client for depositions and examinations

The therapist's role: coping, not content

The lawyer prepares the client on testimony: the process, the rules, what to expect. The therapist helps with the nervous system. Keep those lanes clean. A therapist who helps shape what the client says can create problems for the client and for the therapist.

Helpful clinical support might include:

• Grounding skills the client can use quietly in a conference room.
• A plan for breaks, including a signal the client and lawyer agree on in advance.
• Rehearsing how to notice dissociation or flooding and slow down.
• Processing anticipatory anxiety in the weeks before.
• A session soon after the deposition, if the client wants one.

Depositions

A deposition is questioning under oath by the other side's lawyer, with a court reporter and often video. It can last hours and touch on family history, prior trauma, relationships and treatment.

Mental examinations

If the client claims emotional injury, the defense may seek a mental examination by its own retained evaluator. In California, Code of Civil Procedure section 2032.310 requires a party to obtain leave of court for a mental examination, and the motion must specify the time, place, manner, conditions, scope and nature of the exam. The client's lawyer will explain what was ordered or agreed. Your job is to help the client manage the experience of being evaluated by someone who is not on their side.

Pacing and safety planning around case milestones

Civil cases move in bursts, with long quiet stretches between them, and dates can change on short notice.

A few principles that can help:

• With consent, the lawyer can give the client advance notice of major dates so they can plan sessions around them.
• Build safety plans that anticipate the hardest weeks: responses to discovery, the deposition, the exam, mediation, and trial.
• Normalize setbacks around milestones. A spike in symptoms during a deposition week is not a sign that therapy is failing.
• Revisit the client's goals. The client decides whether to settle; California Rule of Professional Conduct 1.2(a) requires a lawyer to abide by that decision.

Communication boundaries

• Go through the client. The default channel is the client. Direct contact between therapist and lawyer happens only with authorization and for a defined purpose.
• Keep it minimal. Share only what the authorization covers.
• Document carefully. Note what was authorized, what was shared, when and with whom.
• Avoid advocacy in the record. Write clinical notes for clinical purposes.
• No referral fees. No referral fees are paid. California Rule of Professional Conduct 7.2(b) generally bars a lawyer from giving anything of value for a referral, and the CAMFT Code (Standard 12.1) says therapists do not offer or accept payment for referrals.

If you are served with a subpoena

Do not ignore it

A subpoena is a legal document that calls for testimony or records.

A subpoena is not the same as a court order

In California, an attorney of record can sign and issue a subpoena in a pending case (Code of Civil Procedure section 1985(c)). A judge does not necessarily review it first. A court order is different. Civil Code section 56.10(b) requires disclosure of medical information when compelled by a court order, among other listed circumstances.

Consider the privilege

Under Evidence Code section 1014, the psychotherapist who was treating the patient at the time of the communication can claim the privilege on the patient's behalf, subject to the limits in the statute. Whether and how to assert it is a question to take to your own counsel.

Call your own counsel or carrier first

Before producing anything or speaking with the requesting lawyer, contact your own attorney, your malpractice carrier's risk-management line, or your professional association's legal resources. Let your client know about the subpoena, and with consent, tell the client's lawyer, who may object or seek a protective order. The client's lawyer represents the client, not you.

Case milestone and support checklist

• Consult and intake: Client decides whether to proceed. Revisit goals and fears in session.
• Releases signed: Narrow authorization in place. Separate authorization for psychotherapy notes only if the client chooses.
• Filing: Expect a surge of feeling. Plan a session nearby.
• Written discovery: Client may need support recalling painful history. Help with pacing, not answers.
• Records requests or subpoena: Do not ignore. Call your own counsel or carrier. Notify the client.
• Deposition: Lawyer prepares content. Therapist prepares coping and a break plan. Offer a follow-up session.
• Mental examination: Discuss what being evaluated may feel like. Plan grounding and aftercare.
• Mediation or settlement talks: Support the client's own decision. Watch for pressure, guilt or ambivalence.
• Trial: Review safety plan. Coordinate scheduling with consent.
• After the case: Make room for whatever comes next, including grief, relief or anticlimax.

FAQ

Can I talk to my client's lawyer without a release?

No. Get a signed authorization from the client first, and keep the scope narrow.

Do I have to hand over my psychotherapy notes?

Under HIPAA, psychotherapy notes generally require their own specific authorization. If you receive a subpoena or other demand, consult your own counsel before producing anything.

Should I act as the forensic evaluator for my client?

Generally no. The APA forensic guidelines and the CAMFT Code both caution against mixing treating and forensic roles. A separate retained evaluator is the usual approach.

What if I get a subpoena for my client's records?

Do not ignore it, and do not simply produce the file. Contact your own counsel or malpractice carrier, notify your client, and, with consent, alert the client's lawyer.

Next step

With the client's consent, they can start a confidential case review at pchinjurylaw.com or call (310) 299-9PCH. Frank Stucki, Esq., MBA welcomes calls from clinicians with general questions about the process (without client identifiers). No referral fees are paid.

For clients connected to Utah, see the Utah therapist referral guide.

Frank Stucki, Esq., MBA is licensed in California, Nevada, Washington and Utah; cases in other states are handled with local co-counsel licensed there.

This article is general information, not legal advice. Reading it does not create an attorney-client relationship. Attorney Advertising.

Sources

• https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-C/part-164/subpart-E/section-164.501
• https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-C/part-164/subpart-E/section-164.508
• https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EVID&sectionNum=1014
• https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EVID&sectionNum=1016
• https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=56.10
• https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=56.11
• https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=1985
• https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=2032.310
• https://www.calbar.ca.gov/sites/default/files/portals/0/documents/rules/Rules-of-Professional-Conduct-1.pdf
• https://www.calbar.ca.gov/sites/default/files/portals/0/documents/rules/Rules-of-Professional-Conduct-7.pdf
• https://www.camft.org/ethicscode
• https://www.apa.org/practice/guidelines/forensic-psychology
• https://slcsurvivorlaw.com/resources/therapist-referral-guide-utah-trauma-legal-consult
• https://slcsurvivorlaw.com/resources/therapy-records-legal-case-utah-privilege-subpoenas