Attorney-client privilege - the trust and confidence between the two - is at the very heart of successful law practice. This privilege applies only to those communications that are confidential in the sense that the person or persons making them did not intend that they be disclosed to third persons other than representatives of the client or the lawyer. Under traditional legal practice, the client is the one entitled to assert the privilege. The attorney to whom the communication is made is presumed to possess the authority to claim the privilege on behalf of the client. And the attorney, or the attorney’s representative, may not claim the privilege except on behalf of the client.
It is fairly easy to protect attorney-client privileged communications on your electronic devices when you are sitting in your office or working from home. But most attorneys are not limited to working in an office. We travel for business, we travel for pleasure, and oftentimes, we mix work and pleasure travel. International travel comes with added perils for attorney-client privileged materials because many jurisdictions recognize the privilege only where it involves the defense of a company in litigation, and some foreign jurisdictions do not apply the privilege to in-house counsel.
How do we, as attorneys, protect the attorney-client privilege when we travel, especially abroad?
How do we observe Rule 502 when faced with the ever-growing, watchful eye (and sometimes grabbing hand) of a country’s government – whether it be on domestic or international soil? An agent’s search of an electronic device could effectively allow access to all of a firm’s client files.
Here are some helpful tips for protecting attorney-client privileged materials on your mobile phones and laptops while traveling across the U.S. and overseas:
If you can, leave devices at home.
Consider deactivating email on your devices during your trip and accessing it only through a Virtual Private Network (VPN) OR take a burner phone or laptop that contains no client data and allows VPN access.
Consider encrypting and backing up information on your devices. Clear your browser history.
Consider putting your devices in “airplane mode” and/or turning them off before entering a border inspection area.
Do not keep privileged or confidential materials on your device itself; rather, utilize a database that allows secure storage of privileged information, and, if possible, use a computer system that requires multi-factor authentication.
If approached for a border inspection of electronic devices, show credentials to identify yourself as an attorney and advise the agent that the devices contain confidential or privileged materials protected under U.S. law. In other words, assert the privilege on behalf of your client. If that fails, object to the search on privilege grounds.
Ascertain whether the official is making a request or a demand for inspection (i.e., is there a subpoena or warrant demanding that you turn it over?).
Original and forwarded communications such as documents, emails, and texts should always begin with a notation that the material is privileged and confidential, and end with a recommendation or request for legal opinion or analysis.
If confidential information is disclosed in a border inspection, determine if you must advise the affected clients about the disclosure. This is important to avoid malpractice or bar complaints.
Always remember that the burden is upon the party asserting the privilege to prove it; the privilege is to be strictly applied because it is in derogation of the search for truth; the judge has the responsibility for determining if the privilege applies and should not normally decide the question based solely upon the fact that the client asserts it; the communication may be made only between representatives of the client who are within the “control group” or whose duties are closely related to the matter about which the communication is made; the claimant must prove that the communication was treated within the corporation as confidential; and the person claiming the privilege must show that the communication was made “for the purpose of effecting legal representation for the client.”
When a border agent encounters information asserted to be attorney-client privileged or attorney work product, the officer must seek clarification from the individual asserting the privilege regarding the particulars that may assist the official in identifying specific privileged information.
Agents must consult with agency lawyers or prosecutors before they search a device when a claim of privilege is made. U.S. citizens who refuse to allow searches of devices will be allowed to enter the country, but their devices may be confiscated. If a border agent asks for a password for a device, the lawyer should ask whether the agent is asking for the password or ordering it. Simply giving the password could be interpreted as consent to the search.
Keep in mind that the only exceptions to the attorney-client privilege are when:
the client’s purpose is to secure legal advice regarding the commission of a crime or a fraud;
parties claim through the same deceased client a relevant communication between the client and the client’s attorney, such as instances when the two parties claim under a will;
there is a breach of duty by an attorney or client;
communications, such as an attested document, that the attorney, in the discharge of the attorney’s duty, is obliged to make public;
two or more persons acting together become clients of the same lawyer.
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