New York Bar opinion states that lawyers must take reasonable steps to protect confidential information in a border search

Hello everyone and welcome to this Ethics Alert which will discuss the recent New York City Bar Association ethics opinion which states that lawyers must take reasonable precautions to protect attorney/client confidential information if the lawyer is searched by U.S border/customs agents (and/or agents of other countries).  The ethics opinion is NYCBA Formal Opinion 2017-5:  An Attorney’s Ethical Duties Regarding U.S. Border Searches of Electronic Devices Containing Clients’ Confidential Information and it is here: NYCBA Opinion 2017-5.

The opinion states that the lawyer should take reasonable precautions, which will be dependent upon various factors, including the sensitivity of the information, the likelihood of disclosure, and the cost and difficulty caused by implementation of the precautions.  The opinion further states that the simplest way to avoid the issue is to not possess any client confidential information when crossing the border and options would include carrying a “burner” telephone, laptop computer, or other digital device, removing confidential information from digital devices, signing out of cloud-based services, uninstalling applications allowing remote access to confidential information, storing confidential information in secure online locations rather than locally on digital devices, and using encrypted software.

If a border agent asserts lawful authority to search an electronic device containing confidential data, the opinion states that the lawyer should try to prevent disclosure which would include advising the border agent that the device contains confidential information and files, requesting that the confidential information and/or files not be searched or copied and, if the agent is not deterred from conducting the search, asking to speak to the agent’s superior. The lawyer should also carry proof of his or her Bar membership to support the argument.

The opinion states that lawyers should also consider having printed copies of the border agency’s policies and/or guidelines on border searches available since, under the U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection guidelines, agents who are advised of a confidentiality claim state that an agent should seek further review to determine whether there is a “suspicion” that the asserted confidential material may constitute evidence of a crime or pertain to matters within the agencies’ jurisdiction.

“Although it is uncertain how border agents apply this ‘suspicion’ standard in actual searches, attorneys should take advantage of this possible avenue for preventing the disclosure of clients’ confidential information.”  Finally, if confidential information is seized or compromised during a search, the affected clients should be promptly notified.

Bottom line:  This ethics opinion appears to be the first to address the issues related to searches of a lawyer’s electronic devices during a border search.  According to the opinion, lawyers who travel outside of the United States should take reasonable measures to avoid disclosure of client information if U.S. border agents (or border agents of another country) search their electronic devices and, if confidential or privileged material is disclosed, lawyers must notify the affected clients.  My recommendation to lawyers is to avoid the issue by carrying “burner” devices and not having any client confidential information when crossing the border or, if that option is not feasible, storing confidential information in a secure online location and/or using encrypted software.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
This entry was posted in Attorney ethics, attorney-client privilege, Attorney/client confidentiality, Attorney/client privilege, Confidential Information, Confidentiality, corsmeier, Ethics opinion- protecting client confidentiality in border search, Ethics opinion- protecting client confidentiality in search of digital device, joe corsmeier, joseph corsmeier, Lawyer ethics opinions, Lawyer/client confidentiality, Uncategorized and tagged , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s