Motions to Quash a Subpoena

Consider a situation in which you, as a licensed mental health professional (MHP), receive a subpoena to testify in a criminal court case. The defendant is accused of sexually assaulting one of your clients. When you inform your client that you received the subpoena, the client says she does not want you to testify.

You discuss the possibility of moving to quash the subpoena on the grounds that you are an MHP. You note that communications between licensed MHPs and clients during therapy are generally privileged (i.e., that MHPs cannot be compelled to testify about confidential client information without a client’s consent). You further suggest that the client seek legal advice to help them understand their rights and the possibility of filing a motion to quash the subpoena. The client says she does not know how to file such a motion and cannot afford to hire an attorney to provide her with legal advice. One question raised by this situation is whose responsibility is it to file a motion to quash a subpoena: the client's or the MHP's?

Privilege Is Owned by the Client

It is important to recognize that privilege is owned by the client, not the MHP. This means that clients have a right to determine whether to assert or waive their right to privilege in a particular court case (Barsky, 2024). From the MHP’s standpoint, guiding the clients toward legal counsel ensures that they can make informed decisions about how to respond to the subpoena. By not filing a motion to quash on a client’s behalf, the MHP may find it easier to maintain appropriate professional boundaries. The challenge, however, is that the client may lack the financial resources and knowledge to pursue a motion to quash without the MHP’s assistance. One option is to help the client find an attorney who can provide services on a pro bono (free) or sliding-scale basis. Let’s continue the discussion on the assumption that the MHP and client are not able to find an attorney who is willing to provide services at a fee that the client can afford.

MHPs may be allowed to file a motion to quash (National Association of Social Workers, 2015); however, it would be important to discuss and initiate this process with the assistance of an attorney (hired by the MHP or the MHP’s workplace, or a staff attorney at the MHP’s workplace). The attorney could advise the MHP on issues such as the following:

• Do the procedural laws of the specific court give an MHP standing (i.e., the right to raise such a motion on a client’s behalf)?
• On what grounds could the motion to quash be made (i.e., the information is privileged, the subpoena was not properly served, the subpoena contains incorrect or insufficient information, the demand on the MHP is unduly burdensome, or the testimony requested is not relevant to the case)?
• How likely is it that the court will uphold the motion to quash?
• What other legal options could the MHP and client consider?

Appearing in Court

As an alternative to filing a motion to quash, an attorney might suggest that the MHP could appear in court in accordance with the subpoena. When the MHP is then called to testify, the MHP could then assert privilege on the client’s behalf. The MHP could provide the judge with the sections of their code of ethics that explain their duty to maintain confidentiality. The MHP could also provide the section of their licensing laws that describes the client’s right to privilege.

The judge would then need to determine whether to accept privilege or compel the MHP to testify. This approach may save time and legal fees; however, it would mean that the MHP has to spend time in court, and the outcome of asserting privilege would not be known until the date of the hearing. Accordingly, the MHP may need to spend significant time preparing to testify, not knowing whether or not privilege will be upheld. Also, this approach would not fit for a subpoena that requires an MHP to submit case records. Since the MHP is not being called to court to testify, the MHP or client would need to assert privilege through a motion to quash.

Negotiation Between Attorneys

Another option to consider is negotiation between attorneys (APA’s Committee on Legal Issues, 2016). Rather than filing motions to quash or asserting privilege in court, the attorneys involved in the case could discuss the relevant parties’ concerns and try to work out a settlement that is agreeable to everyone involved. For instance, if the client’s main concern was not having certain information shared in a court that is open to the public, perhaps some or all of the proceedings could be held privately (e.g., as is done in some child protection cases). Another option may be for the attorneys to negotiate what types of information may be brought into evidence, and what topics will be avoided (e.g., avoiding topics that may be particularly embarrassing to the client and not required to have a fair hearing for the defendant in the case). In negotiations to limit what may be shared in court, an attorney could also file a motion for a protective order (e.g., placing certain documents under seal).

Clinical, Legal, and Ethical Considerations

Making decisions about whether to file a motion to quash a subpoena involves clinical, legal, and ethical considerations. From a clinical perspective, the MHP wants to maintain a positive working relationship with the client; involvement in court processes could either help or harm their relationship, depending on the situation and how the client views the MHP’s participation in court. From a legal perspective, the client and MHP may benefit from legal advice to ascertain what options are available and the best way to pursue them. From an ethical perspective, an MHP wants to act with honesty, transparency, and a focus on the client’s wishes and best interests. As with other situations involving complex clinical, legal, and ethical matters, when in doubt, consult.