Subpoena survival guide

Acknowledgements:

Subpoena Survival Guide is based on the Women’s Legal Service NSW 3^rd edition (2004) publication Counsellors and Subpoenas, a practical guide for counsellors served with subpoenas. It was substantially revised by Alicia Jillard of Women’s Legal Service NSW, with additional contributions by Janet Loughman of Women’s Legal Service NSW and Rosemarie Lambert, Meredith Osborne and Catriona Cotton from the Sexual Assault Communications Privilege Service at Legal Aid NSW. Legal Aid NSW and Women’s Legal Service NSW thanks the many people who contributed their comments and feedback on the publication.

Without the excellent work of the lawyers, academics and activists in getting the law to acknowledge and protect the rights of victims to confidentiality, writing a guide such as this would not be possible. In particular, we recognise the efforts of the NSW Working Party Concerning the Confidentiality of Counsellors Notes that secured the creation of the privilege in 1997; and the efforts of Women’s Legal Service NSW’s partner organisations and all the pro bono lawyers in the 2010 Sexual Assault Communications Privilege Pilot Project1 that helped realise much-needed amendments to the law and to service delivery for victims of sexual assault in the criminal justice system.

Finally, we acknowledge the resilience and courage of sexual assault survivors and their role in reporting crimes and bringing cases to court.

About this guide:

Since 2010 there have been major changes to the law that have strengthened privacy protections of client records for victims of sexual assault. There is now a free legal service at Legal Aid NSW that provides lawyers for victims in criminal and AVO cases: the Sexual Assault Communications Privilege (SACP) Service.

This guide summarises the current law and discusses the practical implications for you and your service and how you can protect client confidentiality in NSW.

The guide has a focus on the Sexual Assault Communications Privilege but it also covers other protections relevant to subpoenas such as challenging the validity of subpoenas and tips on using the confidential professional relationship privilege. In all these questions, the law tries to balance respect for client confidentiality with the justice system’s need for openness and fairness.

Dealing with a subpoena or other formal request for client records is confronting. Many people feel that they have to release whatever documents they have been asked for. This is a common mistake.

This guide will help you know what to do. It explains how to:

keep good case notes and records;

• respond to subpoenas;
• protect your clients’ right to privacy;
• meet your legal obligations; and
• find out where you and your client can go for legal help.

We have dealt with the situations we think you are most likely to come across in your work, but if you are ever unsure, contact a lawyer. Places where you can get free legal advice are listed on page 55.
 

A note on language.

Throughout this guide, we use the term ‘victim’ of sexual assault, consistent with the SACP legislation. However, we acknowledge that ‘survivor’ is often a preferred term.