Law Updates

Court Extends Psychotherapist-Patient Privilege to Unlicensed Counselors

Richardson v. Sexual Assault/Spouse Abuse Resource Center, Inc., No. MJG-09-3404 (U.S. District Court for the District of Maryland, Feb. 8, 2011) | View pdf

( February 11, 2011) Colleen K. O’Brien. For more information, contact Paul Farquharson

In this case, the Maryland Federal District Court extended the psychotherapist-patient privilege to unlicensed counselors, and applied and construed the attorney-client privilege to communications between a domestic violence victim and Sexual Assault/Spouse Abuse Resource Center, Inc. (“SARC”) legal helpline operators.

In response to Plaintiff’s discovery requests, Defendant SARC and its counselors asserted both privileges on behalf of Plaintiff’s ex-wife. After an in camera review, Judge Paul W. Grimm agreed with the Defendants, finding that the privileges applied, the Defendants had standing to assert them, and that the privileges were not waived.

First, the Court examined the psychotherapist-patient privilege, which applies to confidential communications between licensed psychotherapists and their patients made in the course of treatment. The Plaintiff argued that the privilege should not apply because the communications were made to SARC’s unlicensed counselor, rather than to a licensed social worker. In finding the privilege applied, the Court extended the psychotherapist-patient privilege to unlicensed counselors working under the supervision of licensed social workers.

Next, the Court considered the attorney-client privilege. For the privilege to apply, there must be: 1) a communication; 2) between privileged persons; 3) in confidence; 4) for the purpose of legal assistance. Defendants argued that the privilege applied to phone logs from calls the Plaintiff’s ex-wife made to SARC’s legal helpline. Although the helpline was separate from the legal aid department at SARC, the Court concluded that where the Plaintiff’s ex-wife was seeking legal assistance, and where the helpline was acting subordinate to the legal aid department, the privilege applied.

The Plaintiff also argued that the Defendants waived the attorney-client privilege. First, because they did not assert it in a timely manner (SARC did not assert the privilege until months after Rule 34 production). The Court noted that because the Defendants had claimed the related doctrine of confidentiality in a timely manner, that this timeliness extended to the latter claim of privilege.

Second, the Plaintiff argued that Plaintiff’s ex-wife and SARC counselors waived the attorney-client privilege by disclosing confidential communications in state court. But the Court noted that the Plaintiff’s ex-wife never revealed details regarding the substance of the services she received from SARC, so the privilege remained intact. Finally, even though the counselor disclosed some privileged communications in state court, only those communications were waived, and their waiver did not extend to other, related documents in SARC’s files.