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Are You Headed to Court?

Avoiding Malpractice: Tips for Social Workers to Manage Risk

Are You Headed to Court?
  • Stop … collect your thoughs
  • Look … at your insurance policy
  • Listen … to the experts

Social workers receive a subpoena many times during their career. Sometimes many in one year. Legal defense and advisory costs for one subpoena usually cost the social worker up to $5,000, and may not be covered by the professional liability insurance policy, so the money to pay for legal advisory and defense comes out of the social worker’s wallet.

Do not automatically obey a subpoena. Act immediately to protect yourself and to avoid a contempt charge against you by the court.

STOP … LOOK at your professional liability insurance policy to see if you are covered for legal defense costs, then call and LISTEN to your insurance carrier’s claims representative for policy clarification. BEWARE, your insurance policy may not cover all subpoena legal defense matters. Some policies only cover a few types of subpoena matters, like producing medical records, maybe depositions, but not court appearances.

Your NASW-Endorsed Risk Retention Group Professional Liability insurance claims-made policy issued by NASW Assurance Services provides subpoena legal defense coverage for any matter, including your court appearances and your testimony. This is the broadest coverage in the insurance industry and the most comprehensive.

What is a Subpoena?

A subpoena is a court summons or “writ” ordering the social worker to appear in court to testify, or to produce records in a judicial, administrative, or other formal legal proceeding. Subpoenas served to social workers can occur from any matter such as divorce, child custody, personal injury, or sexual misconduct. Subpoenas can seek a social worker’s appearance at pre-trial depositions or at trial.

When a court issues an order instructing a social worker to testify or release records, the social worker has no legal basis on which to refuse and can be held in contempt if she does not comply. The social worker could refuse to obey the court order as a matter of conscience, but she will be in contempt of court and face jail time, a fine, or both.

This is why you immediately need a lawyer in your venue to protect you and your rights.

Unfortunately, a subpoenaed person may not charge for her time in court or for lost income. A subpoenaed social worker is entitled to statutory fees for one day’s attendance and associated transportation costs, but this is minimal. The real catastrophic damage to the social worker will begin when she walks into court with no lawyer to protect her rights and to advise her.

Do you have a question you would like to see addressed in the Tip of the Month, or wish we would address a previous Tip in more detail? We welcome your ideas! Please email suggestions to asi@naswasi.org (include “Tip Idea” in the email title). A new topic will be profiled each month.

Published April 2014

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