Author's Note: This article by Bruce Horowitz was presented as part of a panel presentation 1 held on April 18, 2018 at the American Bar Association International Section Conference in Washington, DC, focused on what happens when lawyers get stopped by U.S. Border Agents.
Whether or not you are a U.S. citizen, any time you cross a border into the U.S., the U.S. Government has authorized its border agents to stop you on the entry gangway, and ask you to temporarily hand over, and give them the access codes to, your digital devices. For lawyers, that usually means handing over access to your clients' confidential information, attorney work product, secrets and private data.
What a lawyer does at that point can affect their clients' lives and their own professional future.2
"How Does It Feel To Be On Your Own" When Border Agents Ask For Access To The Information In Your Electronic Devices?
At this panel presentation, you will be listening to and interacting with four attorneys with long experience in the legal, organizational and technical aspects of the limited powers of the government to gather information without a warrant; the 1st Amendment, 4th Amendment and Privacy rights of U.S. Citizens, Residents and others people entering the United States of America; and the obligation of attorneys to protect their clients' confidential information.
This short paper is about all lawyers' ethical obligation to protect the confidential information of their clients. While we all have a sense of the Lawyer Ethics Rules concerning attorney-client privilege, this paper takes you one step away from the minutiae of those rules and interpretations of how to respond to information requests from government officials under different circumstance. This paper will, hopefully, allow you to see how you might feel in the shoes of others (non-lawyers in each case, and the shoes of one lawyer in the position of "client" in one case), who truly believed that they had an ethical obligation to protect their "client" (or be protected) against demands for access to information by government officials.
For a Domestic Violence Counselor
In the winter of 1980, the wind and snow were howling outside the State Court House in Juneau, Alaska. Inside the court, a young woman was standing before Judge Tom Stewart. The young woman was a counselor at the A.W.A.R.E. Shelter for Victims of Family Violence, the first such shelter in the State. Judge Steward had supported the enactment of the recent State Law to protect women and children in domestic violence situation, but at this moment, he was asking the young woman who counseled victims of domestic violence to repeat what her client had told her in confidence at a counseling session about certain violent acts allegedly committed by the victim's husband.
This domestic violence counselor was standing before the court rather than sitting in the witness stand because she been brought to court for refusing to testify in a criminal trial against the battering victim's husband. As in many states, Alaska prohibited forcing one spouse to testify against the other spouse, so the District Attorney had chosen to subpoena the spouse's domestic violence counselor instead.
Judge Steward had already asked her two times. This was the third and final time the Judge would ask her to repeat what her client had told her in a counseling session at the women's shelter. The Judge was telling her that if she did not answer, then she would be imprisoned until she did tell.
The howling wind outside could not be heard over the silence in the courtroom.
The domestic violence counselor then repeated for the third and last time that confidentiality was necessary for victims of domestic violence so that they could speak all of the truth to their counselors in order for the psychological healing to begin for the battered victim and her children. In this case, the victim had refused to authorize the counselor to repeat or describe the victim's story. The counselor said that she could not divulge what her client had said to her in confidence.
After a few more moments of silence, Judge Stewart said that the counselor's desire to protect her client, and that to stick to her vow to protect client confidences was commendable, but that the law of the State of Alaska did not obligate a domestic violence counselor to protect her client's information even for the worthy purpose of the psychological health of the victim and her children, nor did the law recognize a battered victim's right to confidentiality in communication with a domestic violence counselor. Therefore, with great sadness (which was obvious to anyone in the court room), the judge ordered the bailiff to take the counselor to the waiting pen for transport to jail.3
A Nurse
On September 1, 2017, a hospital nurse, Alex Wubbles, was attending to an unconscious and severely wounded patient at a hospital in Salt Lake City, Utah, when a police officer entered the hospital and asked to have a blood sample drawn from that patient. Under the hospital's patient protection rules a blood sample could only be provided based on a warrant or under a few other specified circumstances. The officer did not have a warrant, nor were the other specifications met, and the nurse read the hospital policy to the officer before refusing to allow the police to secure a blood sample without the consent of the patient. The police officer then forcibly arrested the nurse. In the video link 4, the reader may vicariously experience what it felt like to fulfill her obligation to protect her patient's confidential information.
Two Reporters
On May 3, 1998, the Cincinnati Enquirer began publishing a series of articles by two investigative reporters, Mike Gallagher and Cameron McWhirter, about questionable business practices by an American agro-business company in Latin America. The American company sued the newspaper; and Mr. Gallagher was indicted for theft of voicemail messages.
In 1999, Mr. Gallagher testified in court5, that "protecting a confidential source was 'one of the highest responsibilities a journalist has.'”
Perhaps because Mr. Gallagher had lied to his editors about how he was personally entering the company's voice mail system to collect the information, he decided to negotiate with the prosecutors; and he pleaded guilty on two counts of stealing voicemail messages. He provided the grand jury with the name of his confidential news source, an American lawyer who had worked for the company in Latin America and the United States, and who had provided the Mr. Gallagher with access to the company's voicemail system.
The former company attorney, who was one of Mr. Gallagher's confidential news sources, was indicted on 10 counts of providing illegal access to the voice-mail system6.
Despite prosecutorial threats of indictment, the other reporter, Mr. McWhirter, who had had contact with other confidential sources, refused to identify any of his confidential news sources for the story.7 As Mr. McWhirter later wrote for the Columbia Journalism Review,
The special prosecutor wanted me to do something simple: sign a piece of paper agreeing to waive Ohio's shield law. Doing so would require me to disclose confidential sources with whom I had spoken during the yearlong investigation. He made clear that the risks of not cooperating were great, and threatened to indict me on unspecified charges. I could lose my job; I could go to jail, he said. I must fully cooperate and waive the shield law or he would come after me. His threats, for a while delivered hourly in telephone calls to my lawyer, ranged wildly. He claimed he was going to prosecute me for being a co-conspirator of some kind.
. . . .
My challenge was in that room with the chain-smoking special prosecutor. The question was not what journalist was I going to become, but what journalist was I at that moment. In this life, we learn about what we really believe not when things go well, but when they go wrong. I learned in that room that I would face jail rather than discuss confidential sources.8
The three real-life situations, above, did not involve attorney-client privilege, for which attorneys in all U.S. States and in many countries have State Bar or Supreme Court obligations to protect. In some countries, like Ecuador for instance, it is a crime for a professional to divulge a client's confidential information, if that information could harm the client9.
A question for any attorney is how courageous one must be in protecting the confidential information of a client's, or perhaps all of one's clients' confidential information in the case of a border warrantless laptop search. As courageous as a domestic violence counselor? a nurse? or a reporter? Or is there something in the obligation of an attorney that allows for handing over all the recorded communications on a laptop of all of one's clients to a border agent without a warrant? Or is there some middle ground?
This short paper is about all lawyers' ethical obligation to protect the confidential information of their clients. While we all have a sense of the Lawyer Ethics Rules concerning attorney-client privilege, this paper takes you one step away from the minucia of those rules and interpretations of how to respond to information requests from government officials under different circumstance. This paper will, hopefully, allow you to see how you might feel in the shoes of others (non-lawyers in each case, and the shoes of one lawyer in the position of "client" in one case), who truly believed that they had an ethical obligation to protect their "client" (or be protected) against demands for access to information by government officials.
For a Domestic Violence Counselor
In the winter of 1980, the wind and snow were howling outside the State Court House in Juneau, Alaska. Inside the court, a young woman was standing before Judge Tom Stewart. The young woman was a counselor at the A.W.A.R.E. Shelter for Victims of Family Violence, the first such shelter in the State. Judge Steward had supported the enactment of the recent State Law to protect women and children in domestic violence situation, but at this moment, he was asking the young woman who counseled victims of domestic violence to repeat what her client had told her in confidence at a counseling session about certain violent acts allegedly committed by the victim's husband.
This domestic violence counselor was standing before the court rather than sitting in the witness stand because she been brought to court for refusing to testify in a criminal trial against the battering victim's husband. As in many states, Alaska prohibited forcing one spouse to testify against the other spouse, so the District Attorney had chosen to subpoena the spouse's domestic violence counselor instead.
Judge Steward had already asked her two times. This was the third and final time the Judge would ask her to repeat what her client had told her in a counseling session at the women's shelter. The Judge was telling her that if she did not answer, then she would be imprisoned until she did tell.
The howling wind outside could not be heard over the silence in the courtroom.
The domestic violence counselor then repeated for the third and last time that confidentiality was necessary for victims of domestic violence so that they could speak all of the truth to their counselors in order for the psychological healing to begin for the battered victim and her children. In this case, the victim had refused to authorize the counselor to repeat or describe the victim's story. The counselor said that she could not divulge what her client had said to her in confidence.
After a few more moments of silence, Judge Stewart said that the counselor's desire to protect her client, and that to stick to her vow to protect client confidences was commendable, but that the law of the State of Alaska did not obligate a domestic violence counselor to protect her client's information even for the worthy purpose of the psychological health of the victim and her children, nor did the law recognize a battered victim's right to confidentiality in communication with a domestic violence counselor. Therefore, with great sadness (which was obvious to anyone in the court room), the judge ordered the bailiff to take the counselor to the waiting pen for transport to jail.10
A Nurse
On September 1, 2017, a hospital nurse, Alex Wubbles, was attending to an unconscious and severely wounded patient at a hospital in Salt Lake City, Utah, when a police officer entered the hospital and asked to have a blood sample drawn from that patient. Under the hospital's patient protection rules a blood sample could only be provided based on a warrant or under a few other specified circumstances. The officer did not have a warrant, nor were the other specifications met, and the nurse read the hospital policy to the officer before refusing to allow the police to secure a blood sample without the consent of the patient. The police officer then forcibly arrested the nurse. In the video link 11, the reader may vicariously experience what it felt like to fulfill her obligation to protect her patient's confidential information.
Two Reporters
On May 3, 1998, the Cincinnati Enquirer began publishing a series of articles by two investigative reporters, Mike Gallagher and Cameron McWhirter, about questionable business practices by an American agro-business company in Latin America. The American company sued the newspaper; and Mr. Gallagher was indicted for theft of voicemail messages.
In 1999, Mr. Gallagher testified in court12, that "protecting a confidential source was 'one of the highest responsibilities a journalist has.'”
Perhaps because Mr. Gallagher had lied to his editors about how he was personally entering the company's voice mail system to collect the information, he decided to negotiate with the prosecutors; and he pleaded guilty on two counts of stealing voicemail messages. He provided the grand jury with the name of his confidential news source, an American lawyer who had worked for the company in Latin America and the United States, and who had provided the Mr. Gallagher with access to the company's voicemail system.
The former company attorney, who was one of Mr. Gallagher's confidential news sources, was indicted on 10 counts of providing illegal access to the voice-mail system13.
Despite prosecutorial threats of indictment, the other reporter, Mr. McWhirter, who had had contact with other confidential sources, refused to identify any of his confidential news sources for the story.14 As Mr. McWhirter later wrote for the Columbia Journalism Review,
The special prosecutor wanted me to do something simple: sign a piece of paper agreeing to waive Ohio's shield law. Doing so would require me to disclose confidential sources with whom I had spoken during the yearlong investigation. He made clear that the risks of not cooperating were great, and threatened to indict me on unspecified charges. I could lose my job; I could go to jail, he said. I must fully cooperate and waive the shield law or he would come after me. His threats, for a while delivered hourly in telephone calls to my lawyer, ranged wildly. He claimed he was going to prosecute me for being a co-conspirator of some kind.
. . . .
My challenge was in that room with the chain-smoking special prosecutor. The question was not what journalist was I going to become, but what journalist was I at that moment. In this life, we learn about what we really believe not when things go well, but when they go wrong. I learned in that room that I would face jail rather than discuss confidential sources.15
The three real-life situations, above, did not involve attorney-client privilege, for which attorneys in all U.S. States and in many countries have State Bar or Supreme Court obligations to protect. In some countries, like Ecuador for instance, it is a crime for a professional to divulge a client's confidential information, if that information could harm the client16.
A question for any attorney is how courageous one must be in protecting the confidential information of a client's, or perhaps all of one's clients' confidential information in the case of a border warrantless laptop search. As courageous as a domestic violence counselor? a nurse? or a reporter? Or is there something in the obligation of an attorney that allows for handing over all the recorded communications on a laptop of all of one's clients to a border agent without a warrant? Or is there some middle ground?
Footnote
1 "Welcome Home": Legal Ethics at the Border When Government Agents Pull You Aside and Ask for Your Laptop and Cellphone"
2
COMMITTEE SPONSOR: Lawyers Abroad Committee
COMMITTEE CO-SPONSOR: International Employment Law
COMMITTEE CHAIR & PANEL MODERATOR: Carolyn Knox, Ogletree,
Deakins, Nash, Smoak & Stewart, P.C., San Francisco, CA
PANEL CHAIR & SPEAKER: Bruce Horowitz, Paz Horowitz Abogados
S.A., Quito, Ecuador
GUEST SPEAKERS:
Esha Bhandari, American Civil Liberties Union, New York, NY
Guillermo S. Christensen, Brown Rudnick LLP, Washington, DC
Anthony Paccione, NYCBA Professional Ethics Committee, New York,
NY
Cynthia Pree, Office of the Deputy Associate Chief Counsel for
Customs and Border Protection, New York, NY
3 Based on the personal recollection of the author.
4 The police body cam video of the incident has probably been seen by millions of viewers in the USA and throughout the world. It can be viewed at https://www.youtube.com/watch?v=R_TUFlXRpvI
5 http://www.nytimes.com/1999/04/06/us/reporter-in-chiquita-case-reveals-a-source-in-court.html Reporter, Douglas Franz
6 Ibid.
7 https://archives.cjr.org/feature/saved_by_the_shield.php If this link does not open by clicking on it, here, please copy and past it in the browser to open it "Saved by the Shield", Cameron McWhirter, Columbia Journalism Review (May/June 2008)
8 Ibid.
9Article 179, Integral Organic Criminal Code (COIP), Ecuador
10 Based on the personal recollection of the author.
11 The police body cam video of the incident has probably been seen by millions of viewers in the USA and throughout the world. It can be viewed at https://www.youtube.com/watch?v=R_TUFlXRpvI
12 http://www.nytimes.com/1999/04/06/us/reporter-in-chiquita-case-reveals-a-source-in-court.html Reporter, Douglas Franz
13 Ibid.
14 https://archives.cjr.org/feature/saved_by_the_shield.php If this link does not open by clicking on it, here, please copy and past it in the browser to open it "Saved by the Shield", Cameron McWhirter, Columbia Journalism Review (May/June 2008)
15 Ibid.
16 Article 179, Integral Organic Criminal Code (COIP), Ecuador
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
