ETH 2018-19/1
Ethics Committee Advisory Opinion No. #2018-19/1
New Hampshire Advisory Opinions
Ethics Committee Advisory Opinion
May 6, 2019
Border
Law and Confidential Client Information: Practical
Considerations and Ethical Obligations
ABSTRACT
Lawyers
traveling to foreign countries remain subject to the Rules of
Professional Conduct. Among a lawyer’s responsibilities
under the Rules are the duty to provide competent
representation, which includes an obligation to remain
current on developments in technology, and the duty to
maintain the confidentiality of client information. Given the
possibility that a lawyer’s electronic devices may be
subject to search without reasonable suspicion both at the
U.S. border and within foreign countries, lawyers traveling
abroad may need to take special precautions to ensure that
the confidentiality of client information is not compromised.
ANNOTATIONS
A
lawyer’s ethical obligations under the Rules of
Professional Conduct transcend state and international
boundaries.
Lawyers
traveling outside the United States must remain aware of
their ethical duties with respect to the confidentiality of
client information and take all steps necessary to protect
that confidentiality.
A
lawyer’s duty under Rule 1.1 to provide competent
representation to clients includes an obligation to remain
current on developments in technology.
A
lawyer has a general duty under Rule 1.6 to maintain a
client’s confidential information.
Under
Rule 1.6(b)(4), a lawyer may reveal information
relating to the representation of a client to the extent
necessary to comply with other law or a court order.
Upon
receipt of a demand for confidential client information from
a court or government entity, a lawyer first must notify or
attempt to notify the client, whether current or former, of
the demand.
Rule
1.6(a) permits a lawyer to disclose confidential client
information with the client’s informed consent.
When
consulting with a client regarding a demand for confidential
client information from a court or government entity, the
lawyer should explain the protections afforded by Rule 1.6;
the extent to which the attorney-client privilege, work
product doctrine, or other privileges or immunities apply;
whether the demand is valid; any grounds for challenging the
demand; and the extent to which disclosure of confidential
client information may raise potential criminal liability for
the client.
If a
client wishes to challenge a demand for confidential client
information from a court or government entity, the lawyer
should take steps consistent with the client’s wishes
and challenge the demand on any reasonable grounds.
If a
challenge to a demand for confidential client information
from a court or government entity is unsuccessful, the lawyer
must consult with the client about the possibility of appeal.
If a
challenge to a demand for confidential client information
from a court or government entity is unsuccessful, the
disclosure should be no greater than the lawyer reasonably
believes necessary to accomplish the purpose.
If a
lawyer is unable to consult with the client regarding a
demand for confidential client information from a government
entity, the lawyer should assert all non-frivolous claims and
objections on behalf of the client.
A
lawyer is obligated to be aware of how confidential client
information will be handled when that lawyer is travelling
internationally.
A
lawyer should understand how the electronic devices with
which the lawyer is traveling access and store information,
and should take all reasonable steps to prevent others from
accessing confidential information through that device.
INTRODUCTION
A
lawyer’s ethical obligations under the New Hampshire
Rules of Professional Conduct (NH RPC) remain in place
regardless of whether that lawyer is physically within the
confines of New Hampshire or even the United
States.
1 Accordingly, a lawyer crossing
international borders should always be mindful of these
ethical obligations. In light of recent policy pronouncements
by U.S. Customs and Border Protection concerning the
potential search of electronic devices, it is particularly
important that attorneys traveling outside the United States
remain aware of their ethical duties with respect to the
confidentiality of client information and take all steps
necessary to protect that confidentiality. While this piece
will primarily focus on the ethical duties of a lawyer
entering or leaving the United States, similar issues should
be considered when crossing any international border.
I.
BACKGROUND ON BORDER SEARCHES
A.
What kind of U.S. border searches of electronic devices can
be expected?
There
is limited case law on border searches of electronic devices.
As a general matter, searches of entrants to the United
States at its borders “are not subject to any
requirement of reasonable suspicion, probable cause, or
warrant.”
2 As the U.S. Supreme
Court has explained, “searches made at the border,
pursuant to the longstanding right of the sovereign to
protect itself by stopping and examining persons and property
crossing into this country, are reasonable simply by virtue
of the fact that they occur at the border.”
3
It is
less clear, however, whether this same blanket rule applies
to searches of electronic devices at the border. The U.S.
Court of Appeals for the 9
th Circuit has held that
a forensic search of a laptop required reasonable suspicion,
even though that search occurred at the border.
4 The court observed that, while
international travelers expect their property to be searched
at the border:
“what they do not expected is that, absent some
particularized suspicion, agents will mine every last piece
of data on their devices or deprive them of their most
personal property for days (or perhaps weeks or even months,
depending upon how long the search takes.)… Such a
thorough and detailed search of the most intimate details of
one's life is a substantial intrusion upon personal
privacy and dignity. We therefore hold that the forensic
examination of [the defendant’s] computer required a
showing of reasonable suspicion, a modest requirement in
light of the Fourth Amendment.” 5
Courts
categorize border searches as either “routine” or
“non-routine.” Properly empowered officials have
the statutory authority to conduct “routine”
searches of persons and their personal belongings at the
border without reasonable suspicion, probable cause, or a
warrant.
6 A “routine”
search may consist of a limited search for contraband or
weapons by means of:
i. A pat-down; 7
ii. The removal of outer garments such as jackers, hats,
shoes, and the emptying of pockets, wallets, or purses;
8
iii. The use of drug-sniffing dogs; 9
iv. The examination of outbound materials; 10 and
v. The inspection of luggage.11
There
is no established test to determine whether a particular
search procedure is “routine” versus
“non-routine”. Typically, the court looks at the
degree of intrusiveness associated with the particular
technique. The First Circuit has identified 6 factors to be
considered:
12
i. Whether the search required the traveler to disrobe or
expose intimate body parts;
ii. Whether there was physical contact with the traveler;
iii. Whether force was used;
iv. Whether the type of search exposed the traveler to pain
or danger;
v. The overall manner in which the search was conducted; and
vi. Whether the traveler’s reasonable expectation of
privacy, if any, was invaded by the search.
The
Braks Court found that only strip searches and body
cavity searches are consistently “non-routine.”
At a minimum, courts require the presence of reasonable
suspicion of criminal activity to justify a...
