Section I

Forensic Practice

Introduction

Counselor sometimes interface with the court system, either intentionally in expert or other court-appointed roles, or unintentionally, when issued a subpoena or otherwise invited to participate in a legal matter involving a past or current client. Section I is introduced as a new addition to the ACA Code of Ethics to distinguish traditional counseling process from the process for court-involved roles, and to offer guidance for the nuances of practice and ethical dilemmas that frequently arise when counselors choose to practice or find themselves in this context.

I.1. Types of Witnesses

Counselors understand the differences among a fact witness, an education witness, and an expert witness. Counselors clarify the nature of any testimony solicited for a legal proceeding and the limitations to the parameters of their testimony.

I.2. Distinguishing Forensic Roles from Traditional Counseling

I.2.a. Defining Roles

Counselors clearly define their established role with a client or clients, and explain a nontraditional forensic role, and how the responsibilities of the counselor and the rights of the client differ from a traditional counseling role.

I.2.b. Competence

Counselors do not assume expert or evaluative roles outside the scope of their competence.

1.2.c. Training for Expertise

Counselors serving in expert roles to court proceedings are specifically trained regarding court process, the scope and responsibilities of that role, and relevant law, and are trained specifically in the substantive area about which they are called to be expert.

1.2.d. Expertise in Traditional Counseling Roles

Counselors may be considered experts with a specific population of clients, regarding specific areas of practice, treatment modalities, techniques, or theory.

1.2.e. Scope of Expectation for Traditional Roles Involved in Court Proceedings

When treating a client in a traditional role, the counselor does not become involved in a court proceeding absent a specific request and waiver of confidentiality from the client, or in response to a valid subpoena. A counselor in a traditional role with a client is generally considered a fact witness.

1.2.f. Scope of Expectation for Forensic Roles

When accepting a court appointment, counselors seek a court order defining the scope of expectation for an expert or evaluative role for a court proceeding.

I.2.g. Mid-Process Role Changes

Counselors do not change roles once a relationship has been established, do not morph from traditional counselor to expert or evaluator, and do not modify from a confidential to a nonconfidential role.

I.3. Recommendations and Opinions

I.3.a. Foundation for Recommendations and Opinions

Counselors may offer treatment recommendations regarding their own client, with the client’s consent, when subpoenaed for court proceedings. A counselor in a forensic role is permitted to offer opinions and recommendations if expected in the context of the specific role.

Counselors do not opine nor do they render recommendations regarding individuals they have never met or evaluated.

I.3.b. Reports

Counselors do not write and provide reports for third parties, including the courts, outside the scope of their role and expertise. Counselors may write and provide reports if the context of their role so requires. When a counselor is expected to render a report to a third party, the counselor shall provide only necessary information, such as dates of service, treatment compliance, and estimate of need for ongoing treatment. The counselor shall maintain the client’s confidentiality to the extent possible.

I.4. Subpoenas

I.4.a. Parameters of Subpoenas

Counselors do not ignore subpoenas. Counselors review any subpoena received to identify the parameters of what is requested (e.g., release of records, testimony).

I.4.b. Validity

Counselors determine the validity of a subpoena prior to responding or releasing records. Counselors should consult with an attorney for a review of validity.

I.4.c. Consultation and Options for Limiting Scope

Counselors should consult with an attorney to determine if a subpoena should be limited or can be invalidated prior to providing records or testimony. Where possible, counselors endeavor to protect confidentiality and the client’s right of privacy so that the negative impact to the client of discovery demands in a legal proceeding do not outweigh the probative value.

I.4.d. Scope of Subpoenas for Counselors in Traditional Roles

A counselor in a traditional counseling role who responds to a subpoena offers testimony limited to the scope of the counselor’s role and does not offer opinion or recommendations beyond that scope.

I.4.e. Scope of Subpoenas for Counselors in Expert or Evaluative Roles

A counselor in a forensic role anticipates writing a report and testifying in a court proceeding and responds to a valid subpoena as an extension of the expectations of the identified role.

I.4.f. Client Consent and Releases and Ability to Limit Response

Counselors inform the client when a subpoena is received by the counselor. Counselors seek to first obtain a release from the client upon receiving a subpoena before releasing any records or providing testimony. Counselors clearly explain to clients that releases of information are global and cannot include limitations imposed by the client (e.g., you can testify about x, but not y).

I.5. Withdrawal, Excessive Fees, and Abandonment

I.5.a. Refusal to Participate in Court Proceedings

Counselors do not refuse to participate in a court proceeding involving their client if subpoenaed.

I.5.b. Abandonment

Counselors do not abandon clients by withdrawing from a case exclusively due to the client’s involvement in a pending or soon to be pending court proceeding and the counselor’s preference not to be involved or testify.

1.5.c. Fees Related to Court Involvement

Counselors may alter fees to accommodate for the time associated with being out of their practice and in court for prolonged periods of time, but counselors may not charge exorbitant fees solely to dissuade clients from involving the counselors in the court proceeding.

I.6. Forensic Expert and Evaluative Roles

I.6. Avoiding Potentially Harmful Relationships

Counselors who provide forensic evaluations avoid potentially harmful professional or personal relationships with family members, romantic partners, and close friends of individuals they are evaluating or have evaluated in the past. Counselors avoid conflicts of interests and do not accept evaluative roles where previous relationships with individuals associated with the case may lead to bias.

I.7. Additional Training for Expert and Evaluative Roles

Counselors providing expert or evaluative services for court-involved matters must receive additional training regarding court process and requirements, as well as the standards and components of such evaluation in the industry. Counselors must have additional specialization training in an area in which they hold themselves out as an expert.

I.8. Familiarity with Confounding Issues

Counselors identify risks and exercise caution when implementing interventions across family members when complicating dynamics are present.

I.9. Mandated Clients

Counselors discuss the required ethical and legal limitations to confidentiality when working with clients who have been mandated for counseling services. If the client refuses services, counselors respect client autonomy and discuss the potential consequences of refusing counseling services with the client, including reporting noncompliance. See A.2.e. Mandated Clients.