Border Alert!

Border Alert!

A Toolkit for Canadian Lawyers who Travel to the United States

At risk – the potential disclosure of confidential information and the loss of privilege covering your communications with your clients when leaving or re-entering Canada

Confidentiality

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You have an ethical duty to your client to keep client communications private. This duty applies to all information you have about a client or a former client. This duty also applies to your staff.

“A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information.” There are a few narrow exceptions to this duty. Please check your professional code of conduct for the exact terms of the duty of confidentiality that applies to you.

Section 3.3-1 Model Code of Professional Conduct, Federation of Canadian Law Societies

A lawyer is responsible for maintaining the safety and confidentiality of the files of the client in the possession of the lawyer and should take all reasonable steps to ensure the privacy and safekeeping of a client’s confidential information. A lawyer should keep the client’s papers and other property out of sight as well as out of reach of those not entitled to see them.

Commentary, Section 3.5-2[2] Model Code of Professional Conduct, Federation of Canadian Law Societies

Solicitor-client privilege

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Your client has a right to privacy which requires you not to disclose to anyone, with exceptions, when any communications between you relate to legal advice sought or given.

Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law…  This is why all efforts must be made to protect such confidences.

Paragraph 49, Justice Arbour for the majority, Lavallee v Canada (A.G.) [2002] 3 S.C.R. 209

In Quebec. Every person has a right to non-disclosure of confidential information. No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law. The tribunal must, ex officio, ensure that professional secrecy is respected.

Section 9, Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12

Within Canada, jurisprudence, policies, police procedures, law office practices, and your vigilance protect client confidentiality and solicitor-client privilege. At border check points between Canada and the United States – at an airport, port, or roadway – the situation changes.

Any device you are carrying may be inspected by border security and customs officials. Client information on a device is vulnerable to disclosure.

“Device” includes a computer, tablet, mobile phone, thumb drive, portable hard drive, tapes, cameras, and music players.

The consequences of a disclosure of confidential client information or information protected by solicitor-client privilege include:

  • loss of client trust
  • a client lawsuit for negligence
  • an errors and omissions insurance claim
  • disciplinary action by your regulator
  • public criticism

Any one of these consequences may be costly and time-consuming.

This toolkit gives you practical advice on how to make sure you do not enable the disclosure of confidential client information at the border.