Private Practitioners, Agencies and Clients
Items of note from Robert H. Cohen, former NASW General Counsel
(November/December 1994)
From time to time members raise questions concerning the propriety of offering or providing services on a private basis to clients1 who have terminated with the member's agency2 or to those who are still receiving services from the agency. Inquiries come both from members in private practice who are still affiliated with or employed by the agency as well as members who have severed their agency connection. At times members bring the subject to our attention simply because they are concerned with possible ethical implications and want to be sure they are "doing the right thing." On other occasions the inquiry has been prompted by the agency's threat to lodge a complaint for alleged unethical behavior or to sue for breach of some contractual understanding. The following information and guidance is offered.
1. The NASW Code of Ethics does not prohibit client solicitation.
NASW's Code of Ethics was amended in this regard in response to an inquiry and complaint initiated by the Federal Trade Commission (FTC) in 1986. Following lengthy negotiations with the FTC a consent agreement was reached. A Copy of the FTC's Decision and Order of March 3, 1993 (available on request) reflects that agreement.
2. NASW's Standards for the Practice of Clinical Social Work provide in part:
Standard 11. Clinical social workers shall have the right to establish an independent private practice.
Interpretation: Clinical social workers who are employed by agencies and have an independent private practice should not refer agency clients to themselves unless they have made a specific agreement with the agency and have offered alternative options to the clients. Agencies have the responsibility to establish written, reasonable guidelines or policies about secondary employment (see NASW Standards for Social Work Personnel Practices). When an agency does not have clear written policies, the clinical social worker may cite the relevant NASW standards.
The intent of Standard 11 is to provide guidance to clinical social workers within a framework that is respectful of client and agency interests.
3. While neither the Code nor the Standards bar client solicitation, members need to be aware of other provisions in the Code and Standards that may be relevant any time the issue of offering services to a client formerly seen in the agency arises. Thus, for example:
Other provisions of the NASW Code of Ethics, especially those contained in Section II., The Social Worker's Ethical Responsibility to Clients, which deal with termination, withdrawal of services and client self determination, may also be relevant in any given situation.
4. Although, as noted, neither NASW's Code of Ethics nor its Standards for the Practice of Clinical Social Work preclude solicitation of clients, some agencies impose, or seek to impose such restrictions on their employees and/or on social workers who provide services to agencies as independent contractors. Restrictive covenants, as they are called, are often written into agreements designed to prevent employees and contractors from providing services to "agency clients" for a period of time and/or within a designated geographic area after the employee/contractor has ended her/his affiliation with the agency. The legal enforceability of such covenants varies from state to state and will generally hinge on the specific language of the contract and the facts of each case. A full discussion of these factors is beyond the scope of this article. Social workers whose agreements with agencies contain restrictive covenants should consult with an attorney in their particular state who is versed in contract law if the social worker has questions regarding the applicability/enforceability of the covenant.
Social workers should seek legal advice before signing any contract they do not thoroughly understand. Prior legal consultation is particularly important when such contract establishes the terms and conditions of employment and/or the social worker's future right to offer professional services wherever and to whomever they may wish. Moreover, social workers should carefully consider the ethical implications of agreeing to any arrangement which might prove antithetical to the client's best interests or which might otherwise conflict with the social worker's ethical obligations.
1 "Client" as used in this memo is an individual regarded as such by the agency which has provided services to that individual. The term is also used to identify the recipient of social work services provided by a social worker in the context of a professional relationship. Clients, of course, are not the property of any individual or agency and their autonomy in matters relating to their own service must always be respected.
2 We have used the term "agency" in the broadest sense. In many instances, the member has been a participant in or otherwise affiliated with a group practice (either for-profit or not-for-profit), clinic, or other entity.