Safeguarding client secrets: Considerations for attorneys traveling abroad

Whether international travel is required to close deals with foreign clients, conduct meetings or participate in an international arbitration, trips abroad are common across various law practices. It benefits frequent international travelers to be familiar with the process and protocols for entering another country, particularly any laws or restrictions that may differ from their own country. Recent arrests of cruise passengers visiting an island nation in the Caribbean for possessing spare firearm ammunition serve as a reminder of the potentially severe consequences of failing to appreciate these differences in the laws of other countries.

Attorneys traveling abroad, however, may need to take additional precautions when traveling with confidential client information in their possession. What should an attorney do if a border patrol or customs agent requests to look through the attorney’s smartphone or asks them to identify the clients they are traveling to meet in a foreign country? These situations can create a conflict between the duty to comply with international travel directives and the attorney’s professional obligation to protect client information.

In California, that duty is of paramount importance. California Business and Professions Code section 6068(e)(1) requires an attorney to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,” and that obligation is codified in California Rule of Professional Conduct 1.6(a).

In light of increasing concerns over potential disclosures of confidential client information and violations of attorney-client privilege at borders and airports, the American Bar Association, in a 2017 letter, urged the Department of Homeland Security to modify and clarify the relevant directives and to adopt “standards and procedures that [Custom and Border Protection] and [Immigration and Customs Enforcement] agents must follow before the contents of a lawyer’s electronic device can be searched or seized at the border.”

The following year, 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 included:

• Device alternatives: Consider obtaining a new but inexpensive electronic device for international travel and minimize or avoid storing confidential information on the device.

• Pre-inspection precautions: Consider turning off, locking or placing electronic devices in “airplane” mode (or disabling all Wi-Fi, Bluetooth and cellular signals to and from the device) before approaching a border inspection area.

• Search and consent considerations: Determine whether the officer is making a “request” or a “demand” for inspection of an electronic device, and consider whether the applicable Rules of Professional Conduct would permit consenting to a “request” for inspection or acquiescing to a “demand.”

Whether attorneys incorporate these recommendations in their own practice and during international travel will depend on the type of information they have and the reasonableness of taking certain precautions.

Below are some tips for attorneys to consider when traveling abroad to help navigate the complexities surrounding border searches.

Device security measures

Attorneys may consider various methods to ensure privileged and confidential data on electronic devices cannot be accessed by others. How to go about doing so may depend on the nature of the confidential and privileged information in the attorneys’ possession.

Many law firms require two-factor verification (or two-factor authentication) on all electronic devices, including laptops, tablets and smartphones. This requirement can provide an additional layer of security to ensure that only authorized individuals can access client documents and information on these devices. Firms can also adopt systems that require or allow attorneys to securely store privileged and confidential documents and information in cloud-based systems rather than locally on the device itself.

Encryption may also be a practical protective measure, where appropriate. Either way, creating a strong password to access the device is important to ensure that encrypted files remain protected.

Consider leaving it behind

One way to eliminate any potential risks that privileged or confidential information on an attorney’s electronic device would be disclosed is to travel without electronic devices or only with devices that do not have such information on them. This option may work best for attorneys with access to secure visitor laptops or desktops provided by the firm or company in the foreign jurisdiction.

But for most attorneys, traveling without electronic devices is impractical or impossible. Those who cannot do without may consider limiting the number of electronic devices with confidential or privileged information while traveling. The fewer devices, the less likely protected information will be disclosed or accessed.

Objecting to a search

When a border agent requests access to an attorney’s electronic device, the attorney may identify themselves as a member of the legal profession (and provide a business card or bar card) and advise the agent that the device contains confidential and/or privileged information that is protected under U.S. law. However, that may not be enough to deter the request.

If the disclosure of privileged or confidential information appears imminent, attorneys may object to the search on privilege grounds. Specifically, attorneys can:

1. Tell the agent that the requested search is nonroutine;

2. Instruct the agent not to read privileged documents; and

3. Request the agent consult with chief counsel to determine whether a warrant or subpoena is required.

See Looper v. Morgan, Civ. No. H-92-0294, 1995 U.S. Dist. LEXIS 10241 (S.D. Tex. June 23, 1995) (holding that a warrant or subpoena is required to conduct a non-routine search that involves reading documents subject to a claim of privilege). The propriety of such an objection will depend on the facts and circumstances. Such an objection may be inappropriate or unnecessary at the borders of certain countries, including Canada.

Moreover, attorneys may want to ensure they can quickly contact their firm’s general counsel or other risk adviser to help evaluate their duties and next steps (including determining whether client disclosure is advisable).

Keep clients informed

If confidential information is disclosed (regardless of whether a subpoena or warrant was used), the attorney may first want to notify the affected client(s) about the disclosure. Prompt disclosure can help mitigate the risk of any collateral damage, such as a bar complaint or a legal malpractice claim.

Thus, attorneys have several options to help ensure they take reasonable steps to handle border searches consistent with their obligation to maintain client privileges and confidences.