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.

Legal Implications of Wearable Technology

The Apple Watch, Google Glass and Fitbit are among the most recognized wearable gadgets in the market today that are revolutionizing the way we store, retrieve and develop information. With the advent of wearable technology, however, come ethical implications that may soon also revolutionize aspects of the practice of law.

The implications of the capabilities of these wearable devices are already creeping into the legal field, and the data gathered will soon prove to be a legal asset or an ethical headache. The conversation has already begun in Canada, where a personal injury plaintiff’s attorney is attempting, for the first time ever, to use data from his client’s Fitbit to get additional damages, by claiming that as a result of a car accident his client’s activity levels are lower than an average person’s.

Accordingly, the use of such data in litigation may trigger discovery, evidentiary, and even constitutional issues. It is likely that the more specialized the health information collected becomes, the more important the question of privacy will turn out to be. Another area for debate is the reliability of the devices. Attorneys will have to take into account the ease of manipulation among other factors that may affect the accuracy of the information. Constitutional questions regarding the Fourth, Fifth and Sixth Amendments could also be a topic for deliberation.

Also, if the information gathered by these devices is likened to a medical record it would open the proverbial “can of worms,” and determining whether the data is subject to a federal or state regulatory framework is likely to catapult the topic from the courtroom to the congressional floor.

As this topic inches its way to the forefront of legal discourse, attorneys ought to be cognizant of their ethical obligation to remain competent by staying abreast of changes in the law, which include knowing the benefits and risks associated with technology. We will stay tuned to find out how this topic unfolds.

Apple v. Samsung: One Bar Is Not Necessarily Enough

by Candice Lazar

The judge presiding in the Apple v. Samsung case required all of the trial lawyers to be licensed to practice law in the United States District for the Northern District of California. One of Samsung’s attorneys was licensed to practice in the state, but had not been admitted to the federal bar. This mistake allegedly violated Model Rule 5.5, which governs the unauthorized practice of law and multijurisdictional practice. Upon discovery of the mistake, the attorney “immediately applied for and ha[s] been admitted to practice before the District Court of the Northern District of California, and [has] filed an appearance in this case.” The offending attorney has not been sanctioned at this time.

For more information:

http://www.electronista.com/articles/12/08/09/lawyer.co.filed.counter.motion.to.evidence.spoilation.ruling/

http://www.appleinsider.com/articles/12/08/10/samsung_attorney_argued_in_court_without_proper_license_to_practice.html

http://www.fosspatents.com/2012/08/fox-news-commentator-concedes.html

 

 

Competence & Confidentiality

Competence & Confidentiality

Technology is changing the way we practice law.  ABA’s 20/20 Ethics Commission is debating changes to the model rules to reflect the impact of technology. A few states have already begun to address technology and how we practice law by issuing advisory ethics opinions.

USB Flash Drives and Client Confidentiality, pt. 1: Macs in 10 Easy Steps

The age old question: does size really matter? In the digital age, the smaller the device, the bigger the storage capacity. This is great when you want to easily take your case files back and forth between home and the office, but not so great when you lose it.

If you’ve got confidential files on one of these flash drives, you’re in danger of violating your client’s confidentiality. Confidentiality is one of the most important aspect of the client-lawyer relationship, so how are YOU protecting it?