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Professional ethics at the border - the nightmare scenario

7 March 2017

An abridged version of this article first appeared in The Times The Brief on Thursday 2 March.

It's 3am local time, although what time your body thinks it is you can only guess. You're thousands of miles from home, sitting in a small room on your own. The only light is from a single, bare, neon bulb and the rest of the furniture is just as sparse. The man across the desk keeps waving an official-looking form at you. You could fill it out and leave right now, but to do so would mean betraying potentially dozens of people who trust you, and probably losing your job - your whole career - in the process.

This is not a radical activist or a campaigning revolutionary. This is not a suave spy, their cover blown.

This is a solicitor who went abroad in the hope of a beach holiday and some sun. This is the same nightmare scenario that other professions who deal with sensitive information, such as doctors, counsellors, or reporters also face. It's the real life nightmare that happened recently to a NASA engineer who was forced to hand over his work phone containing sensitive research information, rather than face detention re-entering his own country.

Duties of confidentiality are critical to professions such as solicitors - we deal with some of the most intimate details of people's personal and business lives, so we can only do our job if people trust us. We are fortunate in this country that we can take for granted that what we reveal to a solicitor will be kept private. Our laws are expressly written to recognise and protect that confidentiality, and the importance of this covenant with our clients is reflected not only in the sanctions we face if we break it, but also in the protection our legal system gives it.

Increasingly intrusive powers

Yet many states - including our own - are responding to new threats by creating increasingly intrusive powers to gather information at the border. Changes in technology mean we can carry our whole lives - professional and personal - in a single smartphone, so these powers can now reach well beyond our suitcase. This is not even a question of targeted surveillance or abuse of power - increasingly what are seen as 'routine' powers, even randomly applied, are becoming more and more intrusive.

So what is a solicitor - or anyone else working with sensitive personal information - to do when faced with this dilemma? Are we to become a home-bound profession, looking longingly out at the world from the white cliffs of Dover? Hopefully not, but we do need to take a little more care before we travel.

One thing is to think about whether you really need to take devices containing or connecting to sensitive information, such as a work smartphone, with you when you travel. Not only do you avoid the risk of someone wanting to search it, but your family might also thank you for leaving it at home. Employers, too, might be wise to reconsider whether they really need their staff to take business devices overseas in light of the growing risks it brings to both the employee and the firm.

Research your rights under local law

A little time spent researching what your rights and obligations are under local law may be well spent. Is it a country that recognises the importance of the rule of law and the independence of the legal profession? Do they have specific search powers, or specifically recognise professions that handle confidential information?

Finally, if you are placed in the position of being required by local law to reveal information you feel is confidential, or do anything else which might be contrary to your professional duties, seek advice. The Solicitors Regulation Authority has an ethics advice phone line where you can seek help. At the Law Society we have relations with law societies and bar associations around the world, so we may be able to help you get local advice if you're in trouble.

Border security normally merits no more thought than a grumble as we work our way through never-ending airport queues - and usually a hushed one, lest we find ourselves 'randomly' chosen for something even more inconvenient. But for some of us it's not as simple as 'nothing to hide, nothing to fear'. People confide in us, trusting us to keep their confidences. While no one expects a solicitor to risk life, limb, or a trip to Guantanamo Bay to protect their client files, we must take increasing care when we travel to ensure we remain deserving of the trust that is placed in us.

Robert Bourns is president of the Law Society of England and Wales
 

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