Crossing the border with electronic devices: Protecting your client’s confidential information
Ontario lawyers and paralegals (licensees) travelling internationally with electronic devices (including smart phones, tablets, laptops, portable drives, and USBs) face increasing uncertainty about how these devices will be treated by Canadian Border Security Agency officers on return to Canada, by U.S. border agents, or by border agents in other international destinations. Licensees are not immune to search policies and processes that could result in the disclosure of their clients’ confidential information when crossing the border.
This article reminds licensees of their professional obligations when travelling with electronic devices and directs them to a new resource and available support to assist them with complying with their professional obligations.
Confidentiality and Breach Notifications
The search of a licensee’s electronic device at the border that contains confidential client information engages the licensee’s duty of confidentiality. Licensees are required to hold in strict confidence all information concerning the business and affairs of their clients that is acquired in the course of the professional relationship, subject to limited exceptions (Rules of Professional Conduct, rr. 3.3-1 to 3.3-6; Paralegal Rules of Conduct, rr. 3.03(1) to (6)).
In the case of a breach of confidentiality at the border or otherwise, lawyers are required to comply with section 7.8 of the Rules and paralegals with rules 3.02(21) and 8.04 of the Paralegal Rules on errors and omissions. Specifically, licensees must promptly inform the client of the confidentiality breach, recommend that the client obtain independent legal advice concerning any rights the client may have arising from the breach, and advise the client that the licensee may no longer be able to act for the client. Licensees are also required to report the breach to their insurers.
Breaches of confidentiality at the border can, however, be avoided.
In order to assist the legal professions with proactively managing the risks of travelling internationally with electronic devices, the Federation of Law Societies of Canada has published Crossing the Border with Electronic Devices: What Canadian Legal Professionals Should Know. The document provides background information about border searches, an overview of licensees’ professional responsibilities in this context, and some suggestions on how to assess and mitigate risks associated with border searches.
Licensees who have questions about their professional obligations when crossing the border with electronic devices may also contact the Practice Management Helpline. To do so, call the Law Society at 416-947-3315 or 1-800-668-7380, ext. 3315 and ask to be connected to the Helpline. The Helpline is available Monday to Friday 9:00 am – 5:00 pm EST.
Kelly Gerra is Counsel, Practice Management at the Law Society of Ontario. Kelly provides confidential guidance to lawyers and paralegals who contact the Practice Management Helpline on a broad range of ethical, professional responsibility, and practice management topics. She also develops practice management resources and tools to assist licensees in meeting their professional obligations.