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permitted by paragraph (c).” 13 It is highly
unlikely clients will be available to provide
contemporaneous consent to a border search
of the lawyer’s electronic devices.
Even without client consent to disclose
information, under Rule 1.6(c)(5) a lawyer
may disclose information “to comply with
other law or a court order.” 14 However,
when information is disclosed under these
circumstances, the lawyer must proceed as
described in the rule comments:
Absent the client’s written consent to
do o therwise, the lawyer should assert
on behalf of the client all nonfrivolous
claims that the order is not authorized
by other law or that the information
sought is protected against disclosure
by the attorney-client privilege or other
applicable law. In the event of an adverse
ruling, the lawyer must consult with the
client about the possibility of appeal to
the extent required by Rule 1.4. Unless
review is sought, however, paragraph (c)
(5) permits the lawyer to comply with the
court’s order. 15
Commentary also states, “[w]hen disclosure
of information relating to the representation
appears to be required by other law, the
lawyer must discuss the matter with the
client to the extent required by Rule 1.4.” 16
The New York ethics opinion advises that a
lawyer can comply with an agent’s apparently
lawful demand for inspection of an electronic
device, but the lawyer should not accede
to a request for inspection. 17 The opinion
also indicates that lawyers should make
reasonable efforts to discourage inspection.
The Bar opinion advice is consistent with
language in the new Directive. The Directive
describes the scope of permissible searches
and states that “searches of electronic devices
may include searches of the information
stored on the device when it is presented
for inspection or during its detention
by CBP for an inbound or outbound
border inspection.” 18 The Directive then
describes how the scope of the searches
it permits is narrower than the scope of
searches permitted by the 2009 guidance.
The Directive states, “The border search
will include an examination of only the
information that is resident upon the device
and accessible through the device’s operating
system or through other software, tools, or
applications. Officers may not intentionally
use the device to access information that is
solely stored remotely.” 19
The new Directive also addresses what
border agents should do when confronted
with a claim of legally protected documents.
To engage these procedures, when an
agent requests or demands to search, legal
professionals should advise them if a device
contains confidential information, attorney-
client records, or work product materials.
Once the agent is so notified:
Officers encountering information
they identify as, or that is asserted to
be, protected by the attorney-client
privilege or attorney work product
doctrine shall adhere to the following
procedures.
The Officer shall seek clarification,
if practicable in writing, from the
individual asserting this privilege
as to specific files, file types, folders,
categories of files, attorney or client
names, email addresses, phone numbers,
or other particulars that may assist CBP
in identifying privileged information.
Prior to any border search of files or
other materials over which a privilege
has been asserted, the Officer will
contact the CBP Associate/Assistant
Chief Counsel office. In coordination
with the CBP Associate/Assistant
Chief Counsel office, which will
coordinate with the U.S. Attorney’s
Office as needed, Officers will ensure
the segregation of any privileged
material from other information
examined during a border search to
ensure that any privileged material
is handled appropriately while also
ensuring that CBP accomplishes its
critical border security mission. This
segregation process will occur through
the establishment and employment
of a Filter Team composed of legal
and operational representatives, or
through another appropriate measure
with written concurrence of the CBP
Associate/Assistant Chief Counsel
office. 20
The new CBP Directive also addresses
the handling of electronic devices that are
encrypted or passcode protected and when
agents can perform “basic” and “advanced”
searches. Lawyers are encouraged to review
the Directive for that detailed information. 21
1. CDP Directive No. 3340-049A, January 4, 2018,
available at: https://www.cbp.gov/sites/default/files/
assets/documents/2018-Jan/cbp-directive-3340-049a-
border-search-electronic-media.pdf. The Directive
contains a description of procedures for handling
electronic devices. It also states, “This Directive is
an internal policy statement of U.S. Customs and
Border Protection and does not create or confer any
rights, privileges, or benefits on any person or party.”
The Department of Homeland Security also recently
released information about the number and nature of
electronic device border searches. That document is
available at https://www.cbp.gov/newsroom/national-
media-release/cbp-releases-updated-border-search-
electronic-device-directive-and.
2. N.D.R. Prof. Conduct 1.
3. Id.
4. Id. at cmt. 5, providing, “To maintain the requisite
knowledge and skill, a lawyer must keep abreast
of changes in the law and its practice, including
the benefits and risks associated with relevant
technology, engage in continuing study and education
and comply with all continuing legal education
requirements.”
5. N.D.R. Prof. Conduct 1.6.
6. N.D.R. Prof. Conduct 1.6(c)(5).
7. N.D.R. Prof. Conduct 1.6(d).
8. N.D.R. Prof. Conduct 1.6, cmt. 18.
9. Id.
10. N.Y. City Bar Formal Op. 2017-5 at 8,
available at http://s3.amazonaws.com/documents.
nycbar.org/files/2017-5_Border_Search_Opinion_
PROETHICS_7.24.17.pdf.
11. Id. at 5-6.
12. Id. at 7.
13. N.D.R. Prof. Conduct 1.6(a).
14. N.D.R. Prof. Conduct 16(c)(5); N.Y. City Bar
Formal Op. 2017-5 at 13.
15. N.D.R. Prof. Conduct 16, cmt. 13.
16. N.D.R. Prof. Conduct 16, cmt. 12.
17. N.Y. City Bar Formal Op. 2017-5 at 13.
18. CDP Directive No. 3340-049A § 5.1.2.
19. Id. (emphasis added).
20. CDP Directive NO. 3340-049A § 5.2.
21. Id. at §§ 5.1.3 and 5.1.4.
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