New York City Bar Cautions Lawyers to Use Care if U.S. Customs Asks to Review Electronically-Stored Information

New York City Bar Opinion 2017-5 (July 2017), here, provides some interesting information about the care lawyers must take before allowing a lawful search of an attorneys’ smartphone, laptop, or the like.  The opinion is obviously important given the international nature of intellectual property practice and the growing frequency (still small, though) with which Customs officials ask for passwords that could reveal client confidences.

The opinion states in part that lawyers should consider whether they should not carry electronic devices that could permit disclosure to sensitive client information when traveling abroad, and, if asked upon return to provide access to the device, the opinion states:

At the border, if government agents seek to search the attorney’s electronic device pursuant to a claim of lawful authority, and the device contains clients’ confidential information, the attorney may not comply unless “reasonably necessary” under Rule 1.6(b)(6), which permits disclosure of clients’ confidential information to comply with “law or court order.”  Under the Rule, the attorney first must take reasonable measures to prevent disclosure of confidential information, which would include informing the border agent that the device or files in question contain privileged or confidential materials, requesting that such materials not be searched or copied, asking to speak to a superior officer and making any other lawful requests to protect the confidential information from disclosure. To demonstrate that the device contains attorney-client materials, the attorney should carry proof of bar membership, such as an attorney ID card, when crossing a U.S. border.

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.

I’ve never been asked to provide a password, or to handover an electronic device, but the opinion provides some useful reminders of precautions that may be necessary in today’s world.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

4 thoughts on “New York City Bar Cautions Lawyers to Use Care if U.S. Customs Asks to Review Electronically-Stored Information

  1. 3

    Does New York issue lawyer ID cards? The USPTO doesn’t issue cards identifying the holder as a member of the patent bar.

  2. 2

    A claim of privilege in response to an agent’s request that I unlock a work mobile device resulted in a 2-hour wait and my device eventually returned, unsearched. At least, that’s how it went down at customs at DFW.

  3. 1

    I have had personal experience with a family member involved with a electronic device search.

    That search actually resulted in a case of “fruit from the poisoned tree” (and exoneration of the family member).

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