Spring 2018 Gavel Final Spring 2018 Gavel | Page 16

INTERNATIONAL TRAVEL WITH
ELECTRONIC DEVICES: LAWYERS BEWARE
PART 2: A LAWYER'S OBLIGATIONS
JUSTICE DANIEL J. CROTHERS
North Dakota Supreme Court
Part 1 of this series introduced some issues
faced by lawyers when crossing international
borders. After that article was submitted for
publication, the Department of Homeland
Security issued a new Directive regarding
searches of inbound and outbound electronic
devices.1 Part 2 addresses the new Directive
and focuses on the lawyer’s ethical obligation
to protect client confidences when preparing
for international travel or faced with a
demand at the border to search electronic
devices.
Rules for safeguarding
client confidences
Lawyers have an ethical duty under Rule
1.1 to competently represent a client.2
“Competent representation requires the
legal knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.”3 Lawyer competency
includes understanding the use and operation
of technology used in connection with the
delivery of legal services.4
Safeguarding client information is one
of a lawyer’s primary obligations. Rule
1.6 provides, “A lawyer shall not reveal
information relating to the representation
of the client unless the client consents.”5
An exception to the broad prohibition in
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Rule 1.6(a) exists “to the extent the lawyer
reasonably believes necessary” “to comply
with other law or a court order.” 6 This is
more fully discussed below.
Rule 1.6 also requires lawyers take reasonable
steps to avoid accidental disclosure of
information about the representation.
That Rule further provides, “A lawyer shall
make reasonable efforts to prevent the
inadvertent or unauthorized disclosure
of, or unauthorized access to, information
relating to the representation of a client.”7
A comment to Rule 1.6 notes, “Paragraph
(d) requires a lawyer to act competently
to safeguard information relating to the
representation of a client.”8 The comment
continues, “The unauthorized access to, or
the inadvertent or unauthorized disclosure
of, information relating to the representation
of a client does not constitute a violation
of paragraph (d) if the lawyer has made
reasonable efforts to prevent the access or
disclosure.”9
Reasonable attorney efforts
before crossing the United
States border
One lawyer ethics opinion issued before the
latest CBP Directive states lawyers have
an affirmative obligation to reduce client
information that might be available to a
border agent, stating:
Rules 1.1 and 1.6(c) require attorneys to
make reasonable efforts prior to crossing
the U.S. border to avoid or minimize the
risk that government agents will review
or seize client confidences that are carried
on, or accessible on, electronic devices
that attorneys carry across the border. 10
The New York opinion concludes that
its adoption of the ABA Model Rule 1.6
comment 18 “reasonableness factors” “suggest
that an attorney should not carry clients’
confidential information on an electronic
device across the border except where
there is a professional need to do so.” 11 If
the attorney must travel with electronic
devices, the opinion suggested “using a
blank ‘burner’ phone or laptop, or otherwise
removing confidential information from
one’s carried device by deleting confidential
files using software designed to securely
delete information, turning off syncing of
cloud services, signing out of web-based
services, and/or uninstalling applications that
provide local or remote access to confidential
information prior [to] crossing [ ] the
border.” 12
Responding to a border agent’s
demands
A border search of a lawyer’s electronic
device containing information relating to a
client relationship implicates Rule 1.6, even
when the electronic device is minimized
as suggested above. Under Rule 1.6(a), “A
lawyer shall not reveal information relating
to the representation of the client unless
the client consents...or the disclosure is...