Social Workers and Privileged Communication in the Federal Legal System

All 50 states and the District of Columbia recognize that clinical social workers as psychotherapists have legal protection from divulging confidential client communications ("Court Considers If Records," 1996). However, in the past the Federal Rules of Evidence (Saltzburg, 1994), which govern the federal legal system, provided that privileged communication existed only for professions that were recognized by common law, which did not include social work. So different federal courts of appeals have rendered different opinions about privileged communication with psychotherapists. The Fifth, Ninth, 10th, and 11th Circuit Courts of Appeals have refused to recognize a privilege beyond those observed at common law (In re Grand Jury Proceedings, 1989; United States v. Burtrum, 1994; United States v. Corona, 1988-89; United States v. Meagher, 1976), but the Second and Sixth Circuit Courts of Appeals have recognized that psychotherapists have privileged communication (In re Doe, 1992; In re Zuniga, 1983). The issue resurfaced in a case involving an Illinois police officer who had killed a man and sought counseling from a licensed clinical social worker. The family of the deceased filed a lawsuit in federal court and sought disclosures from the social worker regarding what the officer had discussed in counseling. However, the social worker balked, contending that the information was privileged. Having no precedent in its circuit, the U.S. District Court for the Northern District of Illinois refused to recognize a social worker's legal privilege and ordered the officer and social worker to answer questions about the contents of counseling. When both social worker and police officer gave limited responses and claimed forgetfulness on other issues, the court instructed the jury to draw an adverse inference from the failure to disclose fully. Consequently, the officer and her employer were held liable for $525,000 in damages. The Seventh Circuit Court of Appeals later reversed the district court, recognizing a psychotherapist-patient privilege and holding that a balancing test was needed to determine whether the interests of justice outweighed an individual's right to privileged communication (Jaffee v. Redmond, 1995). The U.S. Supreme Court further held that the Federal Rules of Evidence required the recognition of a privilege for licensed or clinical social workers. However, the Court rejected the court of appeals's requirement of a balancing test, ruling instead that the privilege was absolute (Jaffee v. Redmond, 1996). This article discusses the implications of Jaffee v. Redmond for social workers involved in federal and nonfederal cases, for those who practice with Native Americans, and for those who practice in federal prisons. In addition, the article discusses negative implications of the case for social work. Social Workers in Federal Cases Jaffee v. Redmond has implications for social work practice in a number of areas, but its most immediate impact is that it has brought uniformity to the federal judiciary system. Before Jaffee, few courts recognized privileged communication between social workers and clients. Now, all federal courts must recognize the absoluteness of social workers' right to privileged communication; social workers can no longer be compelled to disclose confidential information in civil lawsuits filed in federal court. For example, Jaffee v. Redmond applies to child protective services (CPS) workers who may be facing a lawsuit for failing to prevent an injury to a child or parent. In the past, CPS workers have been sued in federal court for alleged violation of a parent's or child's civil rights. A CPS worker receiving counseling from a licensed or clinical social worker to assist in overcoming grief over the death of a child killed as a result of physical abuse has the benefits of privileged communication. Before Jaffee, the social worker treating a CPS worker as a client could be compelled to testify in court. …