- Center for Ethical Practice - https://centerforethicalpractice.org -

Subpoenas & Court Orders

What is the legal difference between an attorney-issued “discovery subpoena” and a judge’s “court order to produce information”?  What are the ethical implications of this legal difference?  Can you file a “motion to quash” a subpoena?   Should you? Will you agree to be an “expert witness” or only a “fact witness”?  Deciding  how to answer these questions will be important in preparing to protect the rights of any client who becomes involved in a court case.

OUTLINE :

I. Definitions

Subpoena Duces Tecum

Witness Subpoena (for Deposition or Courtroom Testimony)

Court Order

II. Legal Information

Privilege Statutes: § 8.01-399 and § 8.01-400.2

Health Records Privacy Statute: §32.1-127.1:03

Copies of Records (to Client, or to Others with Client Consent): § 8.01-413 and §32.1-127.1:03

Testimony – Fact Witness vs. Expert Opinion: § 8.01-401.1

III. Stage of Case

Discovery of Potential Physical Evidence (e.g., your records)

Deposition

Testimony

IV. Your Role in the Case (Which Hat(s) Are You Wearing?)

Voluntary Roles

“Involuntary” Roles

V. Ethical Options for Response

Obtaining Client Consent to Release Information

Respecting & Supporting Patient’s Assertion of Privilege

VI. Legal Options for Carrying Out Ethical Response

Response Time Available

Legal Responses Available

Educational Goals:
(a) Describe the ethical difference between an attorney-issued discovery subpoena and a judge’s order;
(b) Describe the difference in legal options for response to a subpoena vs. a court order;
(c) Plan how you want to respond to subpoenas in your own practice in various circumstances.