United States: Tips For Traveling Abroad With Confidential Information

Last Updated: December 5 2018
Article by Shari L. Klevens and Alanna Clair

As law firms and clients increasingly go global, attorneys are likewise finding that their practices are not constrained by borders. However, in today's environment, the act of crossing the border can by itself create some unexpected ethical issues.

Indeed, increased security at the borders has created potential conflicts between the disclosure of information demanded at the border and the protection of attorney-client privileged information. Specifically, upon reentering the United States, Customs and Border Protection (CPB) and Immigration and Customs Enforcement (ICE) agents may seek to inspect an attorney's laptop computers, cellphones or other mobile electronic devices.

Because virtually all attorneys now use their mobile devices and computers as part of their practice, allowing a search of those devices could arguably amount to the unauthorized disclosure of confidential client information in violation of California Rule of Professional Conduct 1.6. Rule 1.6(a) provides that "A lawyer shall not reveal information protected from disclosure by Business and Professions Code Section 6068, subdivision (e)(1) unless the client gives informed consent" or in other limited circumstances. Section 6068(e)(1) in turn requires that an attorney "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."

Thus, there is potential tension between an attorney's obligation to maintain client confidences, which is at the heart of the attorney-client relationship, and the compelled disclosure of information on attorneys' personal devices at the border. In light of such concerns, the American Bar Association (ABA), in a May 5, 2017, letter to then Department of Homeland Security (DHS) Secretary General John Kelly and Acting General Counsel Joseph Maher, explained how recent CBP and ICE directives had resulted in customs agents "exercising sweeping powers to search electronic devices at the border, with or without reasonable suspicion of any wrongdoing." The ABA urged DHS to modify and clarify the relevant directives in order to, among other things, prevent privileged or confidential information from being read, duplicated, seized or shared without a subpoena based on reasonable suspicion or a warrant supported by probable cause and to delineate what actions agents must take when faced with a privilege assertion.

Certain bar associations have also proactively provided guidance to their members on the issue. For example, in July 2017, the Professional Ethics Committee of the New York City Bar issued Formal Opinion 2017-5, which sets forth an attorney's ethical duties regarding U.S. border searches of electronic devices containing clients' confidential information. The opinion provides that, before crossing the border, attorneys must take "reasonable efforts" to protect confidential information and details factors relevant to the evaluation of "reasonable efforts."

The opinion further states that attorneys may disclose clients' confidential information at the border only to the extent "reasonably necessary" to respond to a government agent's claim of lawful authority. Further, even when disclosure is reasonably necessary, the opinion provides that attorneys must take reasonably available measures to limit the extent of disclosure. At the same time, "attorneys need not assume unreasonable burdens or suffer significant harms in seeking to test a law or court order." Finally, if confidential information is ultimately disclosed during a border search, the opinion requires the attorney to promptly inform affected clients.

Following the outcry by the bar regarding the CBP and ICE directives, the CBP issued a revised Directive on Border Search of Electronic Devices in January 2018. The revised directive incorporated some, but not all, of the revisions and clarifications requested by the ABA. For example, CBP officers are now required to contact the CBP Associate/Assistant Chief Counsel office before searching a device when an attorney-client privilege is asserted. In addition, more detailed procedures were enacted for the handling of privileged material.

Despite the revisions, the ABA has still expressed concern regarding the potential impact of border searches on privilege or confidentiality. In addition, the New York City bar added a reference to Formal Opinion 2017-5 citing the new directive but nonetheless stated that, while "federal policy may continue to change, the general principles set forth in the opinion nonetheless remain applicable." Accordingly, below are some tips for addressing the potential search of privileged materials when traveling abroad.

Consider Removing Privileged and Confidential Data

While leaving electronic devices behind during international travel may be difficult, one option to limit risks is to remove all privileged and confidential documents and information from the devices. There are alternative ways to access data, including through storage on a secure website to be accessed from elsewhere or even by mailing the information using a trusted courier. This is an extreme step that, while safe, may be impractical in certain circumstances.

Some law firms have considered disabling email access on cellphones altogether on foreign travel and supplying attorneys with "clean" laptops that connect to secure desktops while abroad. Whether such an approach is helpful may depend on the nature of the confidential information in the attorney's possession.

Alert Officer to the Presence of Privileged Information

As discussed above, the CBP's January 2018 directive includes new procedures whereby the CBP officer is required to consult with chief counsel when a privilege claim is asserted. The directive further states that the officer "shall seek clarification, if practicable in writing, from the individual asserting this privilege as to specific files, file types, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information." Thus, attorneys can take steps to protect their client by advising the officer of the presence of privileged information and providing the requested information regarding the nature of the privilege.

Consider Whether to Inform Clients

If confidential information is ultimately disclosed (with or without a subpoena or warrant), depending on the jurisdiction, attorneys may consider informing affected clients, as set forth in Formal Opinion 2017-5 issued by the New York City bar. When coupled with some of the efforts detailed above, prompt communication can help minimize any collateral damage.
The issue of border control can of course involve a difficult balancing of interests. However, for attorneys, it is helpful to remember that the obligations owed to clients remain in effect when crossing the border.

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
30 Jan 2019, Other, Chicago, United States

Please join us on January 30, 2019, for the Fifth Annual Courageous Counsel Leadership Institute. This year's theme is "Risk and reward: Creating a culture that promotes innovation, change and growth.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions