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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3467" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/08/U.S.-border-crossing-223x300.jpg" alt="" width="223" height="300">Travelling abroad for work?&nbsp; What should you do if&nbsp;a&nbsp;Customs and Border Patrol agent, claiming lawful authority, demands that you unlock your computer or thumb drive or cell phone &mdash; full of client confidential information &mdash;&nbsp;and hand it over to be searched as you cross the U.S. border?
A&nbsp;<a href="http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2017-5-an-attorneys-ethical-duties-regarding-us-border-searches-of-electronic-devices-containing-clients-confidential-information">New York City bar association ethics opinion</a> issued on July 25&nbsp;offers some practical tips, and&nbsp;spotlights the ethical duties of confidentiality and client communication involved in this increasingly-common scenario.
Cause for concern
The confidentiality concern is more than hypothetical.&nbsp; According to the Department of Homeland Security, in February 2017 alone, CBP agents&nbsp;searched more than 5,000 cell phones, laptops and other devices.&nbsp;&nbsp;That&rsquo;s as many searches as in all of 2015.&nbsp; <a href="http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/170712-cpb-wyden-letter.pdf">CBP policy</a> apparently permits U.S. customs agents to review any information that physically resides on travelers&rsquo; electronic devices, with or without any reason for suspicion, and to seize the devices pending inspection.
The ABA voiced concern&nbsp;in May, <a href="http://www.abajournal.com/magazine/article/border_searches_confidential_client_info/">requesting</a> that the Department of Homeland Security revise CBP&rsquo;s procedures in order to better protect client confidential information from search or seizure at border crossings.
Evasive tactics necessary?
Under every state version of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html">Model Rule 1.6</a>, you have an ethical duty to safeguard the confidentiality of client information in your possession, and &ldquo;few principles are more important to our legal system,&rdquo; the opinion notes.
The thoroughly-reasoned and detailed New York opinion concludes that Rule 1.6, coupled with <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html">Rule 1.1</a> (Competence), raises obligations before a lawyer approaches the U.S. border; at the border when an agent seeks access to a device; and after an agent has reviewed clients&rsquo; confidential information.
<ul>
<li>Before crossing the border, Rule 1.6(c) and its comments, which require&nbsp;&ldquo;reasonable efforts to prevent ... unauthorized access to&rdquo; client confidential&nbsp;information,&nbsp;means that you must take reasonable precautions in advance to avoid disclosing such information unless authorized by the client (which is unlikely).&nbsp; Depending on the circumstances, including the sensitivity of the information,&nbsp;these efforts&nbsp;may include not carrying any client confidential information across the border.&nbsp; If so, the opinion suggests: &nbsp;securely backing up client information and then crossing the border with&nbsp;a blank &ldquo;burner&rdquo; phone or laptop; turning off syncing of cloud services; signing out of web-based services; and/or uninstalling applications providing local or remote access to confidential information.</li>
<li>At the border, Rule 1.6(b)(6) and its comments&nbsp;come into play.&nbsp; It&nbsp;permits lawyers to disclose confidential information to the extent reasonably believed to be necessary when required &ldquo;to comply with other law or court order,&rdquo; including &ldquo;a governmental entity claiming authority pursuant to ... law.&rdquo;&nbsp; But, the opinion cautions, disclosure is not &ldquo;reasonably necessary&rdquo; to comply with law if there are reasonable lawful alternatives to disclosure.&nbsp; The opinion concludes&nbsp;that &ldquo;it would be an unreasonable burden&rdquo; to require a lawyer to forgo entering the U.S. or to allow herself to be taken into custody or litigate the lawfulness of a border search. But the opinion also says that lawyers have a duty not to comply &ldquo;unless and until&rdquo; the lawyer &ldquo;undertakes reasonable efforts to dissuade border agents from reviewing clients&rsquo; confidential information or to persuade them to limit the extent of their review.&rdquo;&nbsp; To facilitate that challenge, you should carry ID confirming that you are a lawyer, notify agents that your device has client confidential information on it, request that the agents limit their review, and ask to speak to a superior officer, says the opinion.</li>
<li>After a search or seizure of client confidential information, <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications.html">Rule 1.4</a> (Communication) requires that you notify affected clients about what occurred and the extent to which their confidential information may have been reviewed or seized.&nbsp; That communication will let the client decide on possible responses, including a potential legal challenge.</li>
</ul>
Globe-trotting implications
Tennessee ethics lawyer Brian Faughan shared his comments on this opinion under the headline&nbsp;&ldquo;<a href="http://faughnanonethics.com/practicing-law-like-its-espionage-nyc-bar-formal-op-2017-5/">Practicing law like it&rsquo;s espionage</a>.&rdquo;&nbsp; The ways to carry out the potential duty to avoid&nbsp;taking confidential information across U.S. borders,&nbsp;as well as the other recommendations in the New York opinion, indeed make me think of spy craft, and to wonder if we are entering the world of novelist <a href="https://en.wikipedia.org/wiki/John_le_Carr%C3%A9">John LeCarre</a>.&nbsp; That&rsquo;s an uncomfortable thought &mdash;&nbsp;but under the reasoning of this opinion,&nbsp;such considerations are&nbsp;necessary as a matter of ethics.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

U.S. border searches of e-devices:  NYC bar advises on confidentiality duty