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The New York Legal News Round Up

Latest_news It's the middle of the week and time for the weekly round up of New York law-related news headlines:


War on Terrorism Collides with Attorney-Client Privilege

Drlogo11 This week's Daily Record column is entitled "War on terrorism collides with attorney-client privilege."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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War on terrorism collides with attorney-client privilege

In an effort to combat the somewhat nebulous concept of “terrorism,” laptops and other digital devices are currently subject to warrantless inspections at the border.

On July 16, in response to demands from civil liberties groups, two Department of Homeland Security agencies, the U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, released policies on border searches of electronic devices, such as laptops and smart phones. The policies obviously are of great interest to any lawyer who travels internationally, in light of ethical obligations and the confidential nature of the information likely stored on such devices.

The polices provide, in relevant part:

[O]fficers may examine … computers, disks, hard drives, and other electronic or digital storage devices…absent individualized suspicion…transported by any individual attempting to enter, reenter, depart, pass through, or reside in the United States. ... Officers may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search. … [I]f after reviewing the information there is not probable cause to seize it, any copies of the information must be destroyed… To assist CBP in determining the meaning of such information, CBP may seek translation and/or decryption assistance from other Federal agencies or entities. Officers may seek such assistance absent individualized suspicion. … [However] [n]othing in this policy limits the authority of an officer to make written notes or reports or to document impressions relating to a border encounter.

Attorney-Client Privileged Material. Occasionally, an individual claims that the attorney-client privilege prevents the search of his or her information at the border. Although legal materials are not necessarily exempt from a border search, they may be subject to special handling procedures. Correspondence, court documents, and other legal documents may be covered by attorney-client privilege. If an officer suspects that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the officer must seek advice from the Associate/Assistant Chief Counsel or the appropriate U.S. Attorney’s office before conducting a search of the document.

In other words, U.S. officials virtually have unfettered discretion to conduct warrantless, suspicionless laptop and smart phone searches at the border, a policy that seemingly flies in the face of the Fourth Amendment and causes extreme consternation for privacy and civil rights advocates.

Despite the obvious privacy implications of the border search policies, so far both the Fourth and Ninth U.S. Court of Appeals for the Fourth and Ninth Circuits have upheld the legality of such searches, likening the search of a computer’s hard drive to the search of the contents of a briefcase.

However, congressional hearings recently were conducted to examine the constitutionality of such searches and Senator Russell Feingold has said he intends to introduce legislation that would require reasonable suspicion as a prerequisite to border searches of electronic devices. 

The border searches present a unique set of issues for lawyers who travel internationally. While the policies regarding the searches purport to provide for special procedures in the event attorney-client privilege is asserted, there is ample room for the arbitrary exercise of discretion on the part of border
patrol agents when making the determination as to whether a device is subject to the special handling procedures applicable to attorney-client material.

A foolproof method for protecting confidential information has yet to be agreed upon universally. Some computer experts have suggested lawyers consider encrypting confidential client files, while others recommended using Web hosting services for e-mail and file storage in lieu of storing such information on a device’s hard drive.

Until suspicionless laptop searches are declared unconstitutional or otherwise restricted, lawyers traveling internationally will face an unresolved ethical quandary worthy of inclusion on a bar exam.
 


The New York Legal Blog Round Up

Blawgs It's Monday, the beginning of a new week that this particular blogger welcomes with open arms, and time for the weekly round up of interesting posts from my fellow New York law bloggers:

New York Attorney Malpractice Blog:

New York Federal Criminal Practice:

New York Personal Injury Law Blog:

Rochester Family Lawyer:

Wait a Second!:


Define That Term # 292

Dictionary_2 The most recent term was in terrorem, which is defined as:

Latin meaning "in fear." This phrase is used to describe provisions in contracts or wills meant to scare a person into complying with the terms of the agreement. For example, a will might state that an heir will forfeit her inheritance if she challenges the validity of the will. Of course, if the will is challenged and found to be invalid, then the clause itself is also invalid and the heir takes whatever she would have inherited if there were no will.

Edward Wiest got it right!

Today's term is:

effluxion of time.

As always, no dictionaries, please.


The New York Legal Blog Round Up

ILatest_news t's the middle of the week and time for the weekly round up of New York legal news headlines:


Wannabe Lawyers Gamble on the New York State Bar Exam

Drlogo11 This week's Daily Record column is entitled "Wannabe Lawyers Gamble on the New York State Bar Exam."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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You only get one chance to roll the dice of life, make your bet wisely.”
   —Nathan Detroit, “Guys and Dolls”

Just last week, aspiring lawyers across the state endured the anxiety-ridden hazing ritual of sitting for
the New York bar exam. Some chose the traditional method of writing out their answers longhand. Others, despite last year’s laptop fiasco, which resulted in lost essay questions due to unforeseen technical glitches, made the seemingly brazen choice of utilizing laptops for the essay portions of the exam.

The decision to use laptops might seem perplexing to the technologically-challenged lawyers amongst us
who are risk averse. However, the choice is less puzzling when one considers the environment in which
this younger generation was raised and educated.

The vast majority of recent law graduates grew up around computers and were allowed —some might even say encouraged — to utilize technology as part of the educational process. They were able to take classroom notes on laptops and, in many respects, keyboards essentially replaced longhand.

Thus, not surprisingly, the prospect of taking a written exam as lengthy as the bar exam likely seemed a daunting prospect to many of them.  The option to utilize laptops for the essay portion of the exam was no doubt an appealing alternative to this technologically-savvy bunch despite the obvious riskspresented by this choice.

Of course, this year, the New York State Board of Law Examiners did what any self-respecting groups of lawyers would do on the heels of last year’s debacle —it issued a lengthy disclaimer and required those choosing to utilize laptops to sign a detailed waiver.

The disclaimer provided for the procedure to be followed in the event of a technological failure and placed the burden of risk squarely upon the shoulders of the exam-takers:

Technical difficulties may occur before, during or after the bar examination. Technical difficulties may include hardware or software malfunctions, data saving or retrieval problems, operator errors, upload or download problems, or the loss of electrical power at the examination facility. In the event any technical difficulties occur during the bar examination, you must handwrite your essay answers in the answer books provided and no additional time may be allowed...

If you no longer have access to the computer after the conclusion of the examination, you may not be able to retrieve files which could assist in the recovery of missing portions of your essay answers. Should you choose to rent or borrow a computer, you should arrange to keep the computer until after the results of the examination have been released.

In other words, those who chose to utilize the technology which they had been conditioned to use and
upon which they increasingly relied were essentially penalized in the event of a technical glitch.

Furthermore, the laptop program implemented this year made it nearly impossible for many test-takers to participate, since it inexplicably precluded the use of Apple computers, which are used in increasing numbers by law students. Apple computers were not permitted even though the software used for this year’s bar exam can run on Apple computers. In fact, students taking the Maryland bar exam, which used the same software, were allowed to use Apple computers. 

Suffice to say, I am not envious of the choices presented to my computer-reliant, future colleagues: Abandon the technology upon which you’ve been trained to rely or utilize it at your own risk.


The New York Legal Blog Round Up

Blawgs I'm back from the beach, and it's back to work for me and time to round up  posts from my fellow New York law bloggers:

New York Attorney Malpractice Blog:

New York Federal Criminal Practice:

New York Law Blog:

New York Personal Injury Law Blog:

Rochester Family Lawyer:

Simple Justice: