Maintaining Solicitor-Client Privilege When Crossing the Border "Not a New Concern" Says Molly Reynolds

Counsel Molly Reynolds told Law Times that given electronic devices are now essentially the “lifeline” of communication, the issue of privacy of lawyers’ documents is not a new concern.

The article discusses what lawyers can do to ensure privacy of their documents when they cross the border after Canada in July updated its advice about what Canadians can do to protect their privacy.

The U.S. also published an updated directive this year which outlines the parameters when a U.S. official can search electronic device.

“A single search of a lawyer's phone could result in effects for dozens or hundreds of clients depending on how much information is on the device," Molly told Law Times.

Molly also said these concerns were becoming more prevalent because of decreased privacy rights at the border, as well as other custom-controlled areas.

She emphasized the importance of telling every official you meet that you are a lawyer travelling with privileged information that is not for disclosure.

"It's difficult for lawyers because we can't disclose privileged information for the purposes of what we're doing [in the country we're travelling]," Molly said.

For this reason, she stressed it’s imperative lawyers have a plan of action if their devices are searched. Not only this, but they should also "be able to clearly explain the reasons for their trip while maintaining confidentiality."

In the case that a client's identity is privileged, Molly included that "it can be wise to provide the name of a third party who can confirm the meeting and to tell the client you plan to do this."

Molly has written about these issues in her tips for lawyers crossing the border.

For more information on privacy and cybersecurity, see our relevant practice pages.