Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte Holm

Alabama Court of Civil Appeals

March 29, 2019

Ex parte Emily E. Holm, LPC, RPT, NCC
v.
Aubrey Alison Bishop In re: Margaret Bishop

          PETITION FOR WRIT OF MANDAMUS BALDWIN CIRCUIT COURT, DR-14-901467

          THOMPSON, Presiding Judge.

         On August 22, 2018, Aubrey Alison Bishop ("the father") filed in the Baldwin Circuit Court ("the trial court") a petition seeking to modify his periods of visitation with the child born of his marriage to Margaret Bishop ("the mother"). The mother answered and counterclaimed, also seeking a modification of the father's visitation, an order requiring the father to attend counseling sessions with the child, and an award of an attorney fee.

         On September 6, 2018, the father filed a notice of intent to serve a subpoena on Emily E. Holm, the child's counselor, requesting records and information pertaining to Holm's treatment of the child. On October 8, 2018, the mother filed a motion seeking to quash a subpoena the father had issued to Holm. A copy of the subpoena actually issued to Holm was not provided to this court by the parties, but the arguments of the parties indicate that it was the same, in substance, as the one attached to the father's notice of intent to serve the subpoena on Holm. The father opposed the mother's motion to quash.

         On November 2, 2018, the trial court entered an order denying the mother's motion to quash the father's subpoena to Holm. In that order, the trial court determined that, "while there may exist a privilege, the privilege may only be asserted by either the child or the counselor and not by a third party."

         Thereafter, on November 6, 2018, Holm filed a motion to quash the father's subpoena, arguing that the information sought in the subpoena was confidential and privileged. See Rule 503A(c), Ala. R. Evid. ("The person who was the licensed counselor ... at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the client."). The father filed an opposition to Holm's motion to quash.

         On November 9, 2018, the trial court entered an order denying Holm's motion to quash the father's subpoena. In its November 9, 2018, order, the trial court specified that its order required production to the father of Holm's records pertaining to the child and that it did not require the submission of those documents to the court or to any third party. Holm filed a timely petition for a writ of mandamus in this court, arguing that the trial court erred in denying her motion to quash the father's subpoena.

         In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala. 2003), our supreme court held that petitions for a writ of mandamus pertaining to discovery matters will be considered only in certain exceptional cases; one of those exceptions is when a privilege is alleged to have been disregarded. Accordingly, because the issue in this petition concerns the production of privileged information and the trial court has ordered the production of that privileged information, we address the merits of the petition. A writ of mandamus is a drastic and extraordinary remedy and should be granted only when a party demonstrates that the trial court has abused its discretion and that the party has a clear legal right to the relief sought. Ex parte Moore, 642 So.2d 457 (Ala. 1994).

         Initially, we note that the trial court in its November 9, 2018, order, and the parties in their briefs, refer to the privilege set forth in § 34-26-2, Ala. Code 1975, for communications between "licensed psychologists, licensed psychiatrists, [and] licensed psychological technicians and their clients" as being applicable in this matter. However, the materials submitted to this court contain no evidence or allegations regarding whether Holm is a licensed psychologist, a licensed psychiatrist, or a licensed psychological technician.

         Rather, Holm asserted in her motion to quash the father's subpoena that she is a licensed professional counselor. Section 34-8A-21, Ala. Code 1975, provides:

"For the purposes of this chapter [i.e., Title 34, Chapter 8A, entitled 'Counselors'], the confidential relations and communications between licensed professional counselor or certified counselor associate and client are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed."

         The privilege afforded a licensed professional counselor and his or her client pursuant to § 34-8A-21 is the same as that afforded under § 34-26-2, and, therefore, we treat the parties' arguments and the determinations in the trial court's November 9, 2018, order as if they referred to § 34-8A-21, which is applicable in this matter.

         The privilege set forth for licensed professional counselors and their clients under § 34-8A-21, like the privilege set forth in § 34-26-2, is "placed upon the same basis as those provided by law between attorney and client." Similarly, Rule 503A, Ala. R. Evid., also extends, subject to certain exceptions, a privilege to refuse to disclose confidential communications between a licensed professional counselor and his or her client.[1]

         This court's research has not revealed any caselaw discussing the privilege between a licensed professional counselor and his or her client pursuant to § 34-8A-21. However, in the context of the similar privilege afforded a psychologist and his or her client under § 34-26-2, this court has held that, in a custody-modification action, the psychotherapy records for the child that is the subject of the modification action remain privileged and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.