Handling solicitor-client privilege at the U.S. border

Whether you are an in-house lawyer, in private practice or in public service, Ontario lawyers are required by the Law Society of Upper Canada’s Rules of Professional Conduct to not disclose confidential client information to third parties. Often, this confidential or privileged information — including clients’ names, memos, clients’ instructions, drafts of works in progress, telephone numbers, addresses, email addresses, etc. — is stored in lawyers’ laptops, smartphones or tablets.

The Wall Street Journal has reported that travellers from 38 countries who want to enter the United States could be forced to reveal mobile phone contacts, social media passwords and financial data under “extreme vetting” practices being considered by the Trump administration — including lawyers.

The United States Department of Homeland Security has had a written policy on Border Searches of Electronic Devices since 2009 that obviously protects only U.S. citizens including U.S. attorneys. Any other foreign lawyer can have their laptop, tablet or smartphone searched, seized and copied by U.S. Customs and Border Protection officers. In fact, a lawyer’s entire hard drive can be downloaded and copied by U.S. border security and there is no way of knowing what is done with the copy of the hard drive.

The Canada Border Services Agency has no such similar written policy. At the Canadian Bar Association’s annual general meeting Aug. 17-18, 2013, the CBA passed Resolution 13-06-A Solicitor-Client Privilege Claims at the Canadian Border, which called for the following steps: a) urging the Minister of Public Safety and the president of the CBSA to adopt a policy to recognize claims of solicitor-client privilege over documents and electronic documents; b) establish a working group (with representatives from interested CBA sections, conferences and committees, as well as the Department of Justice) to develop an approach to preserving solicitor-client privilege in the context of examinations by the Canada Border Services Agency; c) to work with the Minister of Justice, the Minister of Public Safety and the president of the CBSA to develop a balanced process to permit claims (without negative ramifications) of solicitor-client privilege over documents and electronic documents and appearances forthwith before a judge or master to determine the extent of the permissible examination; and d) ensuring the policy would require that any document obtained or copied by the CBSA on an examination order would be destroyed immediately if it is not relevant to the determination as to whether the person has inadmissible goods.

Since the CBA’s June 19, 2014 letter to the Minister of Justice and the Minister of Public Safety and Emergency Preparedness to seek support in establishing a working group to develop a policy for border searches of lawyers’ laptops and other electronic devices, there have been no further developments on this matter.

Borders are odd places: Things are different there and the rules are certainly different there. Lawyers don’t usually get bothered at the border, unless, of course, they are doing something suspicious or illegal. The last thing a lawyer wants is to be charged with obstruction of an officer in performing their duties. You always want to remain calm and answer all questions asked in a reasonable and logical manner.

A lawyer can always get a letter from their client that details what they are going to do in the U.S. to clarify their position. This helps to strike the balance between disclosing any privileged information and clearing the border by answering the relevant questions. Plainly enough, a lawyer can always say, “I changed my mind. I no longer want to enter the United States” and walk away.

However, as we all know, lawyers like to manage their calendars weeks if not months in advance, and walking away from the U.S. border is not usually an option. A good start is to have your firm or company adopt a travel policy that considers the limitations at the border relating to the protection of client information.

Harpreet K. Sidhu is general counsel, corporate secretary and privacy officer at Pethealth Inc., A Fairfax Company.