RISK MANAGEMENT FOR COUNSELORS

RISK MANAGEMENT FOR COUNSELORS

As a counselor you may be asked at some point in time to be an expert witness for your client. There are some pitfalls and benefits in doing this so here are some to think about.
Be sure to evaluate the consequences of accepting the role of expert witness in this situation. Know your licensure board standards/code of ethics on this as this could lead to a complaint and/or legal action. Providing expert testimony helps the court obtain information based on science or practice standards which needs a person who is unbiased, and who bases their opinions on data-backed evidence, education, training and years of experience. So if you testify for your client you automatically will have bias, intentional/unintentional, and that needs to be known by you and/or the legal entities. You have a duty to answer all questions honestly which could hurt your client if they have a lapse of memory when questioned, break confidentiality so need your client to sign off that you can provide the court with all answers to their questions and that confidentiality is waived during court procedures.
The American Counseling Association of which I am a member states in Standard E.13.c. of its Code of Ethics covers appropriate ways of dealing with this and you might want to recommend an outside expert testify on behalf of your client as they would be free of bias regarding your client.
Always get authorization from your client to talk to attorneys, judge, and waive confidentiality to cover yourself legally. You might not be the right person to provide expert testimony so discuss this openly with your client and/or their attorney.
If you are subpoenaed to appear as a witness of fact for your client then your clients attorney may want you to testify regarding a session in which the client relayed information to you regarding an event, circumstance, etc. This testimony would based on the facts as relayed to you and again you need appropriate authorization from your client. Under this situation you would not be expected to be neutral. You always want to include in your informed consent documentation information about what you can and cannot act as a witness in court. Have your licensing board or personal attorney review your information to cover and ensure it meets with state laws. Because informed consent involves a “process” and not just a static document, this should be discussed with your client from the beginning and on a periodic basis thereafter.
If you choose to testify on behalf of your client there may be depositions, meetings with client’s attorney(s) where you may be helping them with questions, background knowledge, etc. on topics they want to bring up in court. So make sure that your fees are discussed prior to all of the meetings and testimony and that attorneys are invoiced prior to the first meeting/appointment and that you let them know when you expect payment. They can then discuss the reality of payment method and times.
In court always answer with yes or no responses and not uh-huh and if you don’t know the answer, state so. Don’t make anything up and pretend to know more than you do. That could get you into serious trouble and loss of credibility and possibly jail time. Honesty is always the best policy and don’t let your ego get the better of you.
Dress professionally and don’t allow opposing attorney to get under your skin. This is not about you (although they may try to make it that way) but it is about your client and the truth of their experience. If you feel “attacked” by opposing attorney then take a deep breath before answering to center yourself or ask the attorney to repeat their question which will give you time to focus on the correct answer.
Sometimes you can provide a “Declaration” or “Affidavit” for the client’s attorney which will be used instead of you having to testify. In my years of working with clients I have provided many Declarations/Affidavits for my clients when requested.
The information in this article is presented solely for educational purposes. Always consult with an attorney for specific legal advice and

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