Can you be arrested for something you say while bound by a confidentiality agreement? It seems odd to me that a confidentiality agreement could actually increase your odds of being arrested, but it happened. I was once arrested and sent to jail overnight for public intoxication while bound by a written doctor/patient confidentiality in that doctor's private office. The reason, according to the doctor, was for answering "yes" to the question she had asked me without provocation: "Would you normally proceed to drive home in this state?". Shortly after that I was feeling ill and went to the restroom and threw up. I came back into the doctor's office to find two policemen waiting for me. I never understood why that was legal and never got much of a chance to defend myself but it definitely felt like entrapment. I went to try to get help and the counselor sends me to jail? Does not compute. But I am not a lawyer.
California Penal Code 647f states that being intoxicated in public is prohibited. When the police arrived, they were confronted with probable cause for an arrest. They (presumably) became aware of the matter because the doctor called the police, since she believe that you would drive drunk. (We can inquire into whether that was a reasonable belief, but it doesn't matter, what matters is that she had the belief and acted on it). Now the question is whether the doctor acting on the belief (making the call) was legal. A negative answer does not affect the legality of the arrest. There is also a law imposing on medical professionals a duty to report, which is fairly wordy, but does not seem to directly require reporting the fact that a person is publicly intoxicated. However, attending circumstances could have suggested one of the triggering causes for mandatory reporting (wounds, for example). Again, it does not matter (to a point) if, in the light of close scrutiny, the doctor's conclusions were mistaken. When doctors are required to report facts to the police, reasonable over-reporting is not penalized. There is also no law against calling 911 to report a potential DUI (the usual public-campaign focus is on those actually driving). So calling the police under the circumstances falls between "allowed" and "required". The HIPAA privacy rule could be relevant because that theoretically could block the doctor from making the call. (Note that the doctor, and not the patient, is bound by the confidentiality requirements). §160.203 allows exceptions to the confidentiality requirement if "necessary... For purposes of serving a compelling need related to public health, safety, or welfare", so an exception may have been granted. If this was done within the scope of a mandatory reporting law, it is legal to disclose PHI; under §164.512 it is allowed, "to prevent or lessen a serious and imminent threat to the health or safety of a person or the public". A confidentiality agreement would not increase your chances of being arrested. If the doctor's confidentiality statement were less restrictive than HIPAA, HIPAA prevails (the law trumps contract terms). If it is the same as HIPAA, it has no effect (and simply states what HIPAA says – the normal case). If the agreement were more restrictive, it is possible that the doctor calling the police would be a breach of contract, unless the call was required by law. You would have to see what in the agreement would have prohibited calling the police. But that would not affect the validity of the arrest. To re-phrase the matter: the arrest was because you were found to be intoxicated in public. The police were there and could judge your state (probable cause). They were there by permission of the property owner, so the arrest was not unlawful for lack of a warrant. That is as far as one can go in searching for an illegality to the arrest itself. One might go further and ask whether the doctor has committed an actionable wrong by calling the police with her suspicions. This could go either way: it really depends on the full set of details, regarding your condition. If the doctor suspected that your actions fell under one of the mandatory reporting categories, she had to report, and otherwise it is not prohibited under HIPAA. If a person is intoxicated and answers the question "Would you normally proceed to drive home in this state?" in the affirmative, then it is a reasonable inference that the person will do so. An answer "No, absolutely not", on the other hand would work against the "public danger" inference: that has no effect on the arrest, but could have an effect in a suit against the doctor (violation of the privacy rule). In such a suit, the doctor's defense would presumably be that despite the answer, she still had a reasonable belief that you were a public danger. Then the matter would reduce to what other facts she knew of that would support a public danger conclusion.
A related post is here. Are police required to record in car dashcam video for traffic tickets in NJ, USA? Probably not. Is there any way to find out if they aren’t telling the truth? Ask and hope you are not lied to. Can I contact the police chief, mayor, or municipal judge? You can contact the police chief or mayor if you can get through to them. They are not required to answer you unless you make a formal discovery request or public records request. You cannot make ex parte contact with a judge when the other side's lawyer (in this case, the city's lawyer) is not present. How can I defend myself in court trial if the judge always believes highly credible police officers over defendants if I don’t have video? You can tell your side of the story under oath with any details that makes your story believable. You are correct that the judge will usually believe the police officer and not you. So, usually you will lose. This is one reason that most people try to plea bargain their traffic tickets, rather than going to trial. Due process rights give you an opportunity to tell your side of the story when contesting a ticket, but it doesn't give you a right to win (even if you are actually in the right) if the judge or other trier of fact doesn't believe what you have to say. It does not appear that you have a right to a jury trial in a traffic case in New Jersey, although this depends to some extent on the kind of violation being charged, so you are probably stuck with the beliefs of the municipal court judge about who is the more credible witness.
There is a world of legal difference between a doctor or counselor "pressing" you to consider meds and even suggesting several and them actually writing a prescription. The line to cross is a non-doctor writing you a prescription for prescription meds; this has not yet happened. And 99.99% of the time, it won't happen. The counselor is licensed by the state and will clearly know their legal limits, which are an important part of their education and licensing; they are not going to risk their license or a lawsuit by doing something illegal. If the counselor is a doctor and is able to write prescription, then they will ask you about medical history and other meds during a formal clinical visit in order to write the prescription. If you feel the counselor may be pressing you too hard to consider meds, he may be crossing an ethical line, but that's entirely different than breaking the law. Determining if he crossed an ethical line is for his licensing board to consider, not you. You can ask the licensing board how to proceed. Ask the counselor for their license number; they will freely give it and tell you who to contact.
This negotiation tactic is not a crime, but it does implicate an ethical rule for attorneys, Rule of Professional Conduct 4.5, which exists in some states, but has been dropped from the national model rules promulgated by the American Bar Association and is a controversial matter from state to state with several variant forms in different states. In Colorado, the relevant rule of professional conduct for lawyers (Rule 4.5 Threatening Prosecution) states: (a) A lawyer shall not threaten criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter. (b) It shall not be a violation of Rule 4.5 for a lawyer to notify another person in a civil matter that the lawyer reasonably believes that the other's conduct may violate criminal, administrative or disciplinary rules or statutes. The concern about the statement in the question is that mentioning that certain allegations would be put in a publicly filed complaint is an implicit threat to expose criminal acts of the other party if the other party doesn't cooperate, but to refrain from doing so if the other party cooperates. This violates Rule of Professional Conduct 4.5(a) above, and goes beyond Rule 4.5(b) above which states that it is not improper to simply tell someone that it may have been illegal and a crime to do the things that he did. The critical distinction is the implied promise not to disclose these crimes publicly if the other party cooperates by not filing the proposed complaint. Under Rule 4.5, a lawyer can tell someone that certain conduct is probably illegal, and can unilaterally report illegal conduct, but can't hold open the possibility of not reporting illegal conduct to gain a civil advantage. The theory is that it is contrary to public policy for a lawyer to put himself or his client in a position where he is promising to help cover up a crime or other violation of the law. This is controversial, and is not adopted in all states, because it makes some very subtle distinctions that often hinge on strongly implied concepts, and that it provides benefit when applied in many cases to someone who has broken the law, instead of making their violation of the law something that makes them worse off in civil cases as well as in other contexts. There is not a counterpart to Colorado Rule of Professional Conduct 4.5 in the Rules of Professional Conduct of New York State, New Jersey, or Florida. So, to the extent that this conduct is subject to ethical rules in any of these states, it would only be indirectly through, for example, through Rule of Professional Conduct 8.4 in each of these states, which is a general catch all clause prohibiting lawyers from committing culpable crimes or that is dishonest or that is prejudicial to the administration of justice. Rule 8.4 is the counterpart for lawyers of the substantive offense in military justice that a military officer has failed to comport himself as an officer and a gentleman. The history of the decision to remove an express prohibition on threatening prosecution from the ethical rules for lawyers is explained in a 2008 ABA article that also discusses how liability might arise under Rule 8.4. In general, there is nothing wrong with making threats in a negotiation. Often that is precisely what negotiations are about. What is (arguably) wrong is making criminal, administrative or disciplinary charge threats in a civil lawsuit to gain advantage in a civil lawsuit. A prosecutor is perfectly free to make those threats in a criminal case, for example. Similarly, it is perfectly acceptable to make a threat of civil legal action, such as filing a lawsuit, in a civil matter, so long as it doesn't imply a threat to bring criminal, administrative or disciplinary charges if the other side doesn't cooperate. Whether it is proper for an attorney to do this depends heavily upon the state in which this negotiation is taking place, which is not identified in the question.
If you consent, the evidence can almost certainly be used against you. Florida v. Bostick, 501 U.S. 429 (1991) (&quot;Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search.&quot;) If you refuse consent, it is not clear whether the evidence can be used against you, as we don't know why the officer is asking to frisk you. A stop-and-frisk must be supported by a reasonable and articulable suspicion that you have just committed or are about to commit a crime, and that you are at that moment armed and dangerous. If they reasonably suspect you have just committed a crime but do not reasonably suspect you are armed and dangerous, the police may stop you, but they may not search you. That point is worth emphasizing because several other answers are incorrectly assuming otherwise. For one example, in Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016), the police responded to a report of domestic violence. Based on their reasonable and articulable suspicion that the suspect had committed that crime, the police stopped and frisked him. Because they had could reasonably explain why they thought he had committed a crime, but could not reasonably explain why they thought he was armed and dangerous, the court said the stop was legal, but the frisk was not: Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is justified by the concern for the safety of the officer and others in proximity. Accordingly, whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for weapons requires reasonable suspicion that a suspect is armed and presently dangerous to the officer or to others. A lawful frisk does not always flow from a justified stop. Rather, each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined. Even then, the search is basically limited to a minimally intrusive patdown to ensure you don't have any weapons on you, and the officer is generally not permitted to actually search inside pockets or the like, though the search may escalate based on what the officer is able to feel during the patdown. Minnesota v. Dickerson, 508 U.S. 366, 375–76 (1993) (&quot;If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, ... its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.&quot;) The refusal to respond generally operates as a refusal to consent. The police are therefore free to conduct whatever search they could have conducted without your consent. If they have a reasonable, articulable suspicion that you're carrying a gun, they can probably frisk you to see if that's the case. If they have a warrant to search your pockets, they can search your pockets. If they don't have any of that, they need to keep their hands to themselves.
Generally... There are important caveats to the general &quot;two-party&quot; consent rule in the State of California; I will attempt to generally describe some of them. &quot;To violate the PC section 632 rule the communication must be &quot;confidential&quot; - this means that recordings taken in places where the other party should have reasonably expected the communication might be overheard or recorded are not covered.&quot; (Wilkins v. NBC, Inc. (1999) 71 Cal.App.4th 1066, 1079.) &quot;[A] conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.&quot; (Flanagan v. Flanagan, 27 Cal.4th 766, 768 (2002)) Accordingly, if one as a complaining party tries to prove that one had a reasonable expectation of privacy it is not enough that one proves that one reasonably thought it was possible or even probable that the conversation was not overheard, monitored or recorded; one must be able to establish that a reasonable person in the same circumstances as one would objectively, that is based on the sum of factual circumstances, assumed a conversation was confidential. This shows well through the following authorities: &quot;A conversation is deemed “confidential” under § 632 of CIPA only if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan(2002) 27 Cal.4th 766, 768, 774–776; Vera v. O'Keefe (S.D.Cal.2011) 791 F.Supp.2d 959; 1396;. Whether there exists a reasonable expectation that no one is secretly recording or listening to a phone conversation is generally a question of fact. (See Kight v. CashCall, Inc. (4th Dist. 2011) 200 Cal.App.4th 1377, 1396-97; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.) However, where the facts are undisputed, the court may decide the issue as a matter of law. (See Weiner v. ARS Services, Inc. (S.D. Cal. 2012) 2012 WL 3632025 (finding circumstances of call, including its short duration, indicated no expectation of privacy).” An important point is made here: No one assert an objectively reasonable exception if the time to evaluate the circumstances of a conversation or the intention, manner and other factors of the other party to engage in a conversation within an objectively insufficient time. Therefore, the duration, and even more so, the shortness of a conversation can very well be determinative of the reasonableness of a party to complain about their expectation to a part or the entirety (for e.g. in an extremely short exchange) of a conversation. This should come as no surprise: If we ever wondered as to how one may overcome the catch 22 of being accused to have begun recording a conversation if one notifies the other party of the recording just prior to beginning the recording since the notice would not be recorded or being accused for invasion of privacy under California Penal Code § 632 for the part of the conversation recorded just before the lawful indication of the lack of objectively reasonable expectation towards confidentiality in the conversation (for e.g. announcing the fact it is not a confidential call or that it may be recorded), is resolved in this. Again, it is, because the criminal threshold to be met, there must be an objectively reasonable expectation to privacy. If one by act or word calls that into question sufficiently that a reasonable person would not be able to objectively expect that the conversation is private or confidential, it no longer is: It implies that private conversations are the exception, and not the rule although the general perception may differ. This, will now be clear through the definition of confidential communicate in the state, too: “Penal Code § 632(c) defines “confidential communication” as including: any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made . . . in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. To me, through this excerpted quote of the statute, it does appear as to leave an in-between grey area since it does not exclude communications in any other circumstance where circumstances do not reasonably indicate that no party desires it to be confidential, but only in those circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. Which indicates toward the general reading of the statute that confidentiality is the rule, and public communications are the exception. However, authority has consistently reenforced the more restrictive approach. Returning to the previous point, due to the above standard test of confidentiality per, among others, Frio that requires a reasonably objective expectation to privacy, it will be clear as to why it is generally sufficient also to announce a call may be recorded or a call may be monitored — this latter announced solely is fairly rare. (See, e.g., Kight, supra, 200 Cal.App.4th at 1396-1397) Since such announcements in themselves call anyone's reasonably objective expectation to privacy into question, that is, an average person at least contemplates the very real possibility of overhearing or monitoring. Also another consequence which may seem obvious at this point is that since it is not really &quot;consent&quot; that is a prerequisite, but a reasonably objective expectation, and though a fairly low bar, it is effectively imposed on the complaining party, and not the party wishing to record therefore &quot;for purposes of section 632, the privacy rights affected are the same regardless of whether a conversation is secretly recorded by a machine or monitored by a human being” (See, e.g., Kight, supra, 200 Cal.App.4th at 1396-1397) since the threshold is reasonably objective expectation to privacy and effectively not presence or absence of consent; however, if consent is express, than there is, clearly, no reasonably objective expectation to privacy. &quot;Two-party consent&quot; not all party consent? This also leads to the hypothetical: What if in a group one asks another if one can record the conversation, and the other answers in the affirmative, and one begins recording: Would that allow for the recording when the other parties to the conversation haven’t answered? My reading of these interpretations would be that if everyone else in the group made heard the question would no longer have an objectively reasonable expectation of privacy furthermore, their consent would also be implied by not objecting and/or proceeding with the communication. So multiple defenses could be used in a case like this — non-confidential communications as well as consent. An even more extreme, and to many, hardly fathomable scenario would be if one party explicitly objects to recording — however, only after an announcement objectively defying any reasonably objective expectations of confidentiality — what would then happen? Recording, absent any reasonable expectation to confidentiality, let alone one such that is objective, without a problem, should be able to be made. An example of this is typical to situations of domestic violence and/or divorce attorneys where they teach a longer disclaimer something along the line: “I will begin recording hence if you continue you will be deemed to have consented to bring recorded” etc., where they typically proceed even against objections. Although this may be much more than what’s minimally required to lawfully record, these disclaimers will probably have a better deterring effect to stop an assault or other aggression than a beep-tone warning that another party may simply disregard. Beep-tone warnings An important, and fairly obscure and unknown consequence of the above espoused interpretations is the so-called beep-tone warnings for recordings or monitoring of calls. In Air Transportation Association of America v. Public Utilities Common of State of California the California Appeal Court for the 9th Circuit found that if &quot;[a] person wishing to listen in on a conversation without violating the regulation can provide notice by using a beep-tone warning device audible to all parties to the conversation[...]&quot;. The rationale follows the previously analyses and is based on the following facts: A reasonable person would have an objective expectation that an ordinarily operating telephone or other customary audio-transmitting devices would cause no beep-tone in order to operate hence being made heard a beep-tone should call a reasonable persons expectation to the ordinary and/or customary operation of any such remote communication device to the extent that it could not maintain a reasonably objective expectation to his or her communication. In a fresh, though unpublished opinion in Smith v. LoanMe, Inc. (2021), an Appeal Court did not vitiate this specific interpretation as it would likely have called the rationale behind it into question as well. &quot;Admissibility&quot; of unlawfully obtained audio recordings Generally, due to the &quot;Right to Truth-in-Evidence&quot; provisions of the California Constitution, a previous statute, Pen. Code § 632(d) was repealed and such evidence became admissible for the purposes of combatting perjury though the person creating such record would still face criminal prosecution for the unlawful recording under § 632; however, I'm less versed in this corner of the statute hence it is highly ill-advised. “[E]vidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding…but can be used to impeach inconsistent testimony by those seeking to exclude the evidence.” (People vs. Crow (1994) 28 Cal.App.4th 440; Frio vs. Superior Court (1988) 203 Cal.App.3d 1480.) To answer your questions more specifically... If you have a good faith duty as a result of a contractual relationship between yourself and those you wish to record, you could potentially be sued for damages for a breach of the covenant of good faith duty and fair dealing if you somehow manage to lawfully notify the other party, but he could prove that you had a bad faith intention and intentionally chose a manner to mislead them. It does not seem plausible to me how they could prove this, but it certainly is within the realm of possibilities. As you can see: California's ban, as it is similar with probably other states, is not a ban for recording, per se, it is a ban of recording or monitoring of confidential conversations. Therefore, simply allowing someone else to eavesdrop on the conversation would implicate the same criminal consequences absent objective indications that would call the to-be-recorded party's reasonable expectation to privacy as you could probably thought so by now. Conclusion As you can see, many of the caveats to the statute are such that the general public would not know, and if you were to record someone, knowing that simply announcing that a call may be overheard or that someone may hear it who will not be part of the conversation or using a beep-tone warning device audible to all parties may each call the reasonably objective expectation of a to-be-recorded party into question which may be useful.
Probably not. It appears that in the case in question, your lawyers, while they were representing you, agreed to a protective order that kept certain information including settlement offers made to them by the opposing parties' lawyers (even if those offers were rejected) confidential. You are bound by the agreements made by your lawyers if they are your lawyers at the time, even they later cease to be your lawyers. So, if you were to make the disclosure of this information subject to a protective order, the court involved could hold you in contempt of court and issue sanctions (including fines and incarceration) for failing to honor the court order to seal the case, because this protective order was binding upon you, because you agreed to it through your lawyers who were acting as your agents at the time. The fact that you are no longer represented by those lawyers doesn't vacate the protective order. CAVEAT: This is an interpretation of the facts made with incomplete information. A truly reliable answer would require review of the exact documents in the case filed with the court which is beyond the scope of Law.SE.
Confidential is simply a less "forceful" name than "privilege". If something is "confidential", this means that the recipient won't voluntarily blab it. This covers a multitude of sins. The rubric I was taught in law school is that even the front page headline of the New York Times if it relates to your case, it is confidential, because you don't want to tip off an adversary who may not have read that paper that day for some reason to the disadvantage of your client. If something is privileged, you can't be compelled to do so involuntarily. A "privilege" is a more "forceful" word. In practice, most stuff that you have a legitimate need to keep secret in the face of compulsory evidence gathering tools are privileged, and confidential matters not covered by a privilege are kept that way because it is best practice not to be source of an opponent's discovery of information and not because it can't be found any other way from something that someone has a legitimate reason to keep secret from someone in a lawsuit or criminal case (which is the main circumstance when privileges are invoked).