New York City Bar: Is A Client’s Confidential Information Secure at the Border?

Attorney’s traveling across the U.S. border may have to account for more than just their luggage. In fact, the New York City Bar recently issued Formal Opinion 2017-5, which offers guidance on dealing with the threat of disclosing confidential client information during a border search of electronic devices.

U.S. Customs and Border Protection (CBP) policy allows U.S. customs agents to review electronic information that is physically stored on a traveler’s device. However, an attorney has an affirmative duty to take “reasonable steps” to avoid disclosing confidential information not authorized by a client.

The New York City Bar’s opinion emphasizes  that under New York’s Rule 1.6(b)(6), attorney’s may not  reveal confidential client information unless it is “reasonably necessary” to obey a “law or court order.” But what determines whether disclosure is reasonably necessary? The opinion states that disclosure of clients’ confidential information is not reasonably necessary if there are “reasonable, lawful alternatives to disclosure.”

For example, an attorney may explain to an inquiring border agent that the device contains client confidential information and request that the materials not be subject to the search. An attorney may also ask to talk to a supervisor and should be prepared to produce state bar identification.  If it becomes necessary for an attorney to disclose clients’ confidential information to the border patrol, then the client must thereafter be informed about the disclosure under New York’s Rule 1.4.

Generally, attorneys should consider the risks of carrying clients’ confidential information while traveling, avoid transporting confidential information when possible, and evaluate what safeguards are reasonable to protect confidential information in the event that it is necessary to carry the information out of the country.

To read the full opinion click here.

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