The coming months may see an increase in international travel as COVID restrictions ease and a semblance of normalcy (hopefully) returns. Given the relative ease at which attorneys were able to transition to remote work, one “new normal” may be attorneys combining business travel and pleasure. Indeed, anywhere in the world with an Internet connection can now become an attorney’s virtual office.

Attorneys traveling abroad may run into complications, however, when it comes to crossing the border. Agents may ask to search electronic devices (e.g., smartphones and laptops) which, with the technology available today, could effectively permit access to every client file for the attorney’s law firm. Turning those devices over to a government agent could create tension with an attorney’s obligation to preserve the client’s confidential information.

The duty to confidentiality is one that California takes seriously. California Rule of Professional Conduct 1.6(a) provides: “A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent” or in other limited circumstances. Section 6068(e)(1) in turn requires that an attorney “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client” (emphasis added).

On Jan. 4, 2018, in response to concerns raised by the American Bar Association (ABA), the U.S. Customs and Border Protection (CBP) issued a revised directive for border searches of electronics. Border officers are now required to consult with CBP’s senior counsel before searching devices containing privileged or work-product protected material. Further, under the new policy, officers are required to segregate privileged materials from other information.

Notably, the directive also clarified that only material stored on the device may be searched; information stored in the cloud should not be accessed. The ABA’s then-President commented that while the revised directive is a step in the right direction, “more clearly needs to be done.”

Courts have increasingly addressed challenges to border searches, and some courts have limited agents’ ability to perform searches. For example, the U.S. Court of Appeals for the Ninth Circuit held that, in order to perform a forensic cell phone search, border officials must reasonably suspect that the cell phone to be searched itself contains digital contraband. See United States v. Cano, 934 F.3d 1002, 1020 (9th Cir. 2019).

But other courts have allowed broader searches, while also holding that no warrant or probable cause is needed. Alasaad v. Mayorkas, 988 F.3d 8, 18 (1st Cir. 2021). However, in Alasaad, the First Circuit noted that the plaintiffs had not presented “the issue of whether the First Amendment would require a different outcome if CBP and ICE were…using border searches to pierce attorney-client privilege” and made clear that its decision “does not foreclose a future as applied First Amendment challenge in such circumstances.” Id. at 23, n. 17.

As it stands, the impact of border searches on the duty to maintain confidential client information remains complex and uncertain. Below are tips for attorneys to consider when traveling abroad—and returning to the United States—with their smartphone and other devices.

Guidance From Bar Associations

Several bar associations have weighed in with recommendations for attorneys to limit the risk that confidential information will be subject to disclosure during a border search of an attorney. For example, the ABA Standing Committee on Ethics and Professional Responsibility issued an electronic device advisory providing recommendations to traveling attorneys.
Some of the ABA’s recommendations are:

• Before approaching a border inspection area, consider placing electronic devices in “airplane” mode or having all Wi-Fi, Bluetooth and cellular connections terminated and disabled. Consider whether electronic devices should be powered down or locked.
• If subject to border inspection of electronic devices, determine whether the officer is making a “request” or a “demand” for inspection.
• Consider whether the Rules of Professional Conduct in your jurisdiction of licensure would permit you to consent to a “request” for inspection, or to accede to a “demand.”

Notably, attorneys are not required by the rules of professional conduct to comply with these recommendations. Whether attorneys adopt these recommendations in their own practices will depend on the type of information attorneys have in their possession, as well as the reasonableness of taking certain precautions.

Local bar associations have also provided guidance to their members for handling searches at the border. For example, in July 2017, the Professional Ethics Committee of the New York City Bar issued Formal Opinion 2017-5 to address an attorney’s ethical duties regarding U.S. border searches of electronic devices containing clients’ confidential information. The opinion provides that, before crossing the border, attorneys must take “reasonable efforts” to protect confidential information and further outlined factors to be considered in evaluating whether “reasonable efforts” were taken.

Consider Security Features

One option always available is to simply leave “smart” electronic devices at home. While that may eliminate potential risks, for most attorneys, it will be impractical or impossible to do before international travel.

How lawyers decide the method of protecting client confidences may depend on the type of confidential and privileged information in the lawyer’s possession. Many firms have computer systems that require two-factor authentication, which can provide an additional layer of security to ensure that only authorized individuals are able to gain access to client documents and information. Further, many law firms utilize databases that allow privileged and confidential documents and information to be securely stored within the system rather than on a device (like a laptop) itself.

Privilege Objection

Consistent with the CBP’s revised directive, if stopped at the border by an agent who requests access to an attorney’s electronic advice, attorneys may identify themselves as members of the legal profession (e.g., provide business card or bar admission card) and advise the border agent that the device contains confidential and/or privileged information that is protected under U.S. law. If, despite best efforts, the disclosure of privileged or confidential information appears imminent, attorneys may object to the search on privilege grounds.

The propriety of a privilege objection will depend on the facts and circumstances. Attorneys can have their firm’s general counsel or other risk adviser on speed dial to assist in such circumstances.

Notify Clients

If confidential information is disclosed, with or without a subpoena or warrant, the next step may be to advise the affected clients of the disclosure. Prompt disclosure can help to mitigate the risk of any collateral damage (i.e., the filing of a malpractice lawsuit or bar complaint).

Because guidance on this issue continues to evolve, attorneys are well-served by keeping up on the latest developments to know how to respond when being searched at the border.