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.
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