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The Lawyer in the Examination Room
Last month, we began discussion of the question: “When the court orders a litigant to undergo a psychological examination, is it proper, or permissible, for that party's attorney to attend the session?” The U.S. Supreme Court made clear in United States v. Wade, 388 U.S. 218 (1967), that criminal defendants had a right to have their attorneys present during medical exams, but the requirements in civil actions are far less clear. Understandably, then, although the arguments pro and con are pretty much the same no matter what the jurisdiction, state and federal courts have come to differing conclusions.
New York Court Ponders the Question
Justice Richard J. Dollinger, of Supreme Court, Monroe County, is hearing the case of M.A.M. v. M.R.M. In this case, parents embroiled in a custody dispute were ordered to undergo psychological examinations. The wife was willing to submit to examination by the court's chosen professional without conditions, but the husband alleged bias. His attorney, who felt that he should be present during his client's examination, asked the evaluator to permit him to attend, to which the psychologist answered, “It is the longstanding policy of this office not to allow third parties to be present for any part of the evaluations for reasons that can be explained if necessary.” Unsatisfied, the husband brought the issue before the court.
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