January 03, 2018
Senior associate Molly Reynolds has spoken with The Lawyer’s Daily about the implications lawyers have when they make the common trek across the Canada-U.S. border.
“The implications are very serious when you have privileged material,” Molly told The Lawyer’s Daily.
“It’s not up to the lawyer to waive it. We would potentially need consent from all our clients.”
The article discusses the potential risk associated with border officials viewing sensitive client material—particularly on electronic devices, where so much information is stored nowadays.
While both the United States and Canada have different policies when it comes to searching electronic devices at the border, Molly told The Lawyer’s Daily once a device is searched the impacts can be significant.
“There is a risk of violating privilege just by having [the device] accessed,” she said.
“When it is copied or retained, we don’t know how that information might be used in respect of the client or the lawyer. We don’t know how it will be shared or for how long.”
Molly told The Lawyer’s Daily if the border official is going to search the electronic devices regardless, the best course of action is to explain there is privileged information on the device and then lodge an official objection.
“Then you do have a good objection on the record and would have a good foundation for refuting allegations of professional misconduct or violations of professional obligations,” she said.
You can find out more about Torys’ privacy work by visiting the expertise page.