On July 25, 2017, the New York City Bar issued Formal Opinion 2017- 5, which concludes that lawyers have a duty to protect clients’ confidential information from disclosure. This duty stretches to U.S. border agents searching electronic devices. Lawyers shall take “reasonable precautions” to avoid disclosure of clients’ confidential information. Such precautions will vary based on the sensitivity of the information, the likelihood of disclosure, and the cost and difficulty of implementing safeguards. If confidential material is disclosed, lawyers have a duty to notify affected clients.
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.
Rules of Professional Conduct: 1.1, 1.4, 1.6
New York City Bar issued Formal Opinion 2017- 5 is available at http://www.nycbar.org…
For more information on lawyer’s duty of confidentiality, contact Francesca Giannoni-Crystal.