Thursday, July 07, 2005

Case o' The Week: Not a privilege to meet you, Romo

Judge McKeown (left) refuses to recognize the psychotherapy privilege for an inmate who sought out a session with his prison counsellor in United States v. Romo, __ F.3d __, 2005 WL 1560266 (9th Cir. July 5, 2005), available here. Judge Betty Fletcher stands up for the privilege in a strong concurring opinion.

Players: Judge McKeown writes for the majority, Judge Betty Fletcher concurs.

Facts: Inmate Robert Romo routinely saw a counselor – LaPlante – while in prison. Id. at *1. One day Romo spoke with LaPlante in a non-scheduled, private meeting. Id. At this meeting Romo confessed that he had written and mailed a threatening letter to the President. Id.

Issue(s): The central issue was whether Romo’s confession to LaPlante was protected by the psycho-therapist-patient privilege. "To determine whether the district court committed clear error, we consider the meaning of the third element of the privilege, the element that requires the communication to be made in the course of diagnosis or treatment." Id. at *2 (internal quotations and citation omitted).

Held: "In sum, the evidence squarely supports the district court’s conclusion that the meeting between LaPlante and Romo did not occur during the course of diagnosis or treatment." Id. at *4.

Of Note: Romo is an important and disappointing case, because it is new Ninth law on what constitutes "in the course of diagnosis or treatment." Id. at *3. The Court in Romo articulated the factors that go into this inquiry: "Whether a meeting occurred ‘in the course of diagnosis or treatment’ is a factual determination that rests upon consideration of the totality of the circumstances. Relevant factors may include the historical nature of the relationship between the individual and his confidante; the patient’s purpose in making the communication; the nature of the contact; the timing and location of the communication; objective data, such as medical records, which corroborate the counseling contact; and whether mental health services were provided or requested during the communication. Standing alone, the fact that a therapist has previously provided mental health care to a patient does not establish that a subsequent meeting was in the course of diagnosis or treatment. Even in the face of an ongoing patient-therapist relationship, the patient and therapist may have contacts that do not involve therapy. Thus, we pay special attention to the particulars of the meeting during which the allegedly privileged information was exchanged." Id. at *3.

Concurring Judge Betty Fletcher would have none of it – she thought the Court didn’t need to get to the privilege issue. Id. at *7 (Fletcher, Judge B., concurring). As Judge Fletcher politely but persuasively observed, "At the suppression hearing LaPlante said he would not turn over his notes from the session without permission from Romo or a court order" . . . . "When a patient contacts his therapist, with whom he has an on-going patient-therapist relationship, to discuss a problem the patient is having and the patient and therapist subsequently meet and discuss the problem the resulting conference is a counseling session." Id.

How to Use: An important distinction available in Romo is the paucity of the defense showing that this was intended to be a private counseling session. The defendant did not file a declaration stating that was his intent, and the Court noted the absence of facts supporting that view. Id. at *4. If possible (with a mentally ill client), developing a defense factual record will be critical to rebut the Romo rule on when the privilege arises.

Should defense counsel advise their clients to avoid prison counseling after this decision? Ironically, that is the practical and unintended consequence of the decision. Although Romo was exactly the type of inmate who needs confidential counseling, he is also exactly the type of client who is most vulnerable when the privilege is not honored. For child-molestation and "threats" clients, Romo raises all sorts of red flags around prison counseling.

For Further Reading: Romo picked up a new threats case while this case was pending. See press release here. Any PD can sympathize with Romo's counsel - these "threats" clients are often mentally ill, and have a hard time with impulse control. Defense counsel who have represented these mentally-ill "threats" clients will appreciate how it unwise it is to undermine these inmates’ full and confidential access to counseling.

As an aside, this case seems particularly unfair in that Romo was in custody -- and couldn't carry out the threat. Moreover, the letter at issue never actually made it to the White House! It was lost in a warehouse and couldn't be produced at trial. Weighing the public policy goal of protecting the President from (lost) letters from incarcerated inmates, against the important policy goal of encouraging counselling for prisoners, this seems to be a particularly impractical decision.

Montana AFPD John Rhodes has taken over the case, and reports that a petition for rehearing is in the works.

Steven Kalar, Senior Litigator N.D. Cal. FPD, website at


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