The petitioner has filed for an order to show cause before the court. The petitioner seeks an order under Rule 137 of the Rules of Civil Practice to direct respondent to appear and testify pursuant to a Commission issued out of the Probate Court of the Commonwealth of Massachusetts, Middlesex County. Under such action pending in the sister state, petitioner seeks to obtain from the defendant-wife, the custody of their minor child. A New York Probate Lawyer said to bolster his case so that child custody (father’s rights) is granted in his favor, the movant contends it is necessary to prove that his wife is not mentally fit to care for their infant child.
The respondent who is a psychologist opposes the petition and contends that the granting of such an order would compel him to violate a statutory prohibition regulating his conduct by forcing him to disclose privileged matters between him and a person alleged to be his patient.
From the papers submitted, the court notes that respondent, after having been served with the subpoena, did appear pursuant thereto before the designated commissioner on 7 July 1962; that he answered the first three interrogatories as to his name, address and profession; that as to the balance of the queries, he declined to answer on the ground that such disclosure would reveal confidential relations and communications between himself, as a psychologist, and a client, and as such, is privileged under Section 7611 of the Education Law. The law on privileged communications, under the said Education Law, provides that: “The confidential relations and communications between a psychologist registered under the provisions of this act and his client are placed on the same basis as those provided by law between an attorney and his client, and nothing in this article shall be construed to require any such privileged communications to be disclosed.”
In the case at bar, there appears to be no question as to the propriety or pertinence of the propounded unanswered interrogatories. The lone issue is whether or not respondent could be impressed to breach a professional confidence, and thereby be guilty of violating the statute referred to.
The court holds that the petitioner’s contention that the Commonwealth of Massachusetts has no similar privilege is untenable. The protective statutory bulwark in the form of Section 7611 of the Education Law may not be ignored. Bronx Probate Lawyers said clearly and without a doubt, to grant the relief sought would be violative of the rights of a citizen of the state. The movant’s contention that defendant waived the privilege and thus opened the door for respondent to testify is also bereft of merit. The language appearing in cases involving an attorney and his client finds application. Under said cases, the court has repeatedly held that where respondents are attorneys in the state and the inquiry concerns professional acts done, they should not be allowed to reveal, much less compelled to, any matter which the public policy of the state deems inviolate. According to the court, the evil which is sought to be avoided is the revelation of the confidential matter per se and not the exclusion of testimony which might be in some way harmful; that the restriction of the statute is only an echo of the mandate of the canon of ethics in that regard and only applies to testimony which is the rule in regard to all communications in or out of court. Clearly, the Legislature intended that a confidential relationship, as here, should be protected just like the relationship between an attorney and his client. Thus, Brooklyn Probate Lawyers said in as much as the court wishes to assist a sister State, it may not go beyond the statutory powers granted by the Legislature.
In sum, the petition is denied.
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