Ride the Lightning

New York City Bar: Ethics Opinion for Attorneys Crossing U.S. Border With Client Data

May 30, 2018

Thanks to Dave Ries for passing along a reissued ethics opinion of the New York City Bar (May 9, 2018). Formal Opinion 2017-5: An Attorney's Ethical Duties Regarding U.S. Boarder Searches of Electronic Devices Containing Clients' Confidential Information gives a pretty good picture of where we are ethically when we cross the U.S. border with confidential data.

The rules impacted are Rules 1.1, 1.4 and 1.6. Here's the opinion digest:

"Under the New York Rules of Professional Conduct (the "Rules"), a New York lawyer has certain ethical obligations when crossing the U.S. border with confidential client information. Before crossing the border, the Rules require a lawyer to take reasonable steps to avoid disclosing confidential information in the event a border agent seeks to search the attorney's electronic device. The "reasonableness" standard does not imply that particular protective measures must invariably be adopted in all circumstances to safeguard clients' confidential information; however, this opinion identifies measures that may satisfy the obligation to safeguard clients' confidences in this situation. Additionally, Under Rule 1.6(b)(6), the lawyer may not disclose a client's confidential information in response to a claim of lawful authority unless doing so is "reasonably necessary" to comply with a border agent's claim of lawful authority. This includes first making reasonable efforts to assert the attorney-client privilege and to otherwise avert or limit the disclosure of confidential information. Finally, if the attorney discloses clients' confidential information to a third party during a border search, the attorney must inform affected clients about such disclosures pursuant to Rule 1.4."

A careful reading is warranted. I expect we'll see more such opinions given the number of anecdotal stories we have heard about attorneys experiencing difficulties with Custom and Border Protection agents when crossing the U.S. border. Make sure you have your bar identification card with you as there are special CBP rules for the treatment of lawyers' confidential data.

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