Amicus Curiae Brief — George Anibowei, Petitioner v. Todd Blanche, Attorney General, et al.

Supreme Court briefSep 18, 2026

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No. 26-208

IN THE

Supreme Court

of the United States

_________

GEORGE ANIBOWEI,

Petitioner,

v.

TODD BLANCHE, U.S. ATTORNEY GENERAL,

ET AL.,

Respondents.

_________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit

_________

BRIEF OF AMICUS CURIAE AMERICAN BAR

ASSOCIATION IN SUPPORT OF PETITIONER

_________

JO-ANN TAMILA SAGAR

MICHAEL J. WEST

JACKSON B. SKEEN

HOGAN LOVELLS

CADWALADER US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

BARBARA J. HOWARD

Counsel of Record

PRESIDENT

AMERICAN BAR ASSOCIATION

321 N. Clark St.

Chicago, IL 60654

312-988-5000

amicusbriefs@americanbar.org

ERICA J. SHULER

HOGAN LOVELLS

CADWALADER US LLP

8350 Broad St., Floor 17

Tysons, VA 22102

Counsel for Amicus Curiae American Bar Association

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST ....................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..........................................................4

ARGUMENT ...............................................................7

I. THE QUESTION PRESENTED

IMPLICATES SUBSTANTIAL

PRIVACY AND CONFIDENTIALITY

INTERESTS......................................................7

II. ATTORNEYS HAVE HEIGHTENED

PRIVACY AND CONFIDENTIALITY

INTERESTS IN THE CONTENTS

OF THEIR ELECTRONIC DEVICES .............8

Attorneys Have A Duty To

Maintain Confidentiality Over

Client Information On Their

Devices .......................................................12

Attorneys Are Under An Obligation

To Preserve Privileged

Communications On Their Devices ..........14

Absent Judicial Supervision,

Border Searches Of Attorneys’

Devices Impose Unique Burdens

On Attorneys And Their Clients...............16

III.THIS COURT SHOULD RESOLVE

THE QUESTION PRESENTED TO

PROVIDE NEEDED CLARITY FOR

ATTORNEYS AND THEIR CLIENTS ..........19

CONCLUSION ..........................................................22

(i)

ii

TABLE OF AUTHORITIES

Page(s)

CASES:

Carpenter v. United States,

585 U.S. 296 (2018) ................................................ 8

Chatrie v. United States,

146 S. Ct. 2193 (2026) ................................ 2, 4, 7, 8

Commodity Futures Trading Comm’n v.

Weintraub,

471 U.S. 343 (1985) .............................................. 15

DR Distribs., LLC v. 21 Century Smoking,

Inc.,

513 F. Supp. 3d 839 (N.D. Ill. 2021) .................... 14

Fisher v. United States,

425 U.S. 391 (1976) .............................................. 14

Hiscox Ins. Co. v. Warden Grier, LLP,

474 F. Supp. 3d 1004 (W.D. Mo. 2020) ................ 14

Hunt v. Blackburn,

128 U.S. 464 (1888) .............................................. 15

In re Conduct of Conry,

491 P.3d 42 (Ore. 2021) ....................................... 13

Jaffee v. Redmond,

518 U.S. 1 (1996) .................................................. 15

James v. Nat’l Fin. LLC,

No. 8931-VCL, 2014 WL 6845560 (Del.

Ch. Dec. 5, 2014) .................................................. 14

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009) .............................................. 15

People v. Braham,

470 P.3d 1031 (Colo. 2017) .................................. 13

TABLE OF AUTHORITIES—Continued

Page(s)

Riley v. California,

573 U.S. 373 (2014) ............................. 4, 7-9, 11, 21

Swidler & Berlin v. United States,

524 U.S. 399 (1998) .............................................. 15

United States v. Wise,

74 F.4th 953 (8th Cir. 2023) ................................ 17

Upjohn Co. v. United States,

449 U.S. 383 (1981) .............................................. 15

RULES:

Sup. Ct. R. 37.2 ............................................................ 1

Sup. Ct. R. 37.6 ............................................................ 1

Model Rules of Pro. Conduct r. 1.1 (ABA

1983) ..................................................................... 13

Model Rules of Pro. Conduct r. 1.1 cmt. 8

(ABA 2012) ........................................................... 13

Model Rules of Pro. Conduct r. 1.4(a)(1)

(ABA 1983) ........................................................... 18

Model Rules of Pro. Conduct r. 1.4(a)(3)

(ABA 1983) ........................................................... 18

Model Rules of Pro. Conduct r. 1.4(a)(4)

(ABA 1983) ........................................................... 18

Model Rules of Pro. Conduct r. 1.6(a) (ABA

1983) ..................................................................... 12

Model Rules of Pro. Conduct r. 1.6(c) (ABA

1983) ............................................................... 13, 18

Model Rules of Pro. Conduct r. 1.6 cmt. 2

(ABA 2002) ........................................................... 12

Model Rules of Pro. Conduct r. 1.6 cmt. 3

(ABA 1983) ........................................................... 13

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES:

ABA Resolution 05A111 (Aug. 9, 2005),

https://www.americanbar.org/content/da

m/aba/directories/policy/annual2005/2005-am-111.pdf............................................ 3

ABA Resolution 19M107A (Jan. 28, 2019),

http://www.americanbar.org/content/da

m/aba/directories/policy/midyear2019/107a-midyear-2019.pdf .............. 3, 5, 7, 18-20

Am. Bar Ass’n, Model Rules of Professional

Conduct,

https://www.americanbar.org/groups/pro

fessional_responsibility/publications/mo

del_rules_of_professional_conduct ........................ 3

Attorneys’ Duties to Protect Client Data,

Practical Law Practice Note w-014-0379,

State Survey: Adopted Duty to Prevent

Inadvertent or Unauthorized Disclosure

Rule....................................................................... 12

W. Bishop, Pew Research Center, Mobile

Fact Sheet (Nov. 20, 2025) ..................................... 7

CBP Directive No. 3340-049A, Border

Search of Electronic Devices (Jan. 4,

2018) ............................................................... 20, 21

Hon. Daniel J. Crothers & Barbara S.

Gillers, Electronic Device Advisory for

Mid-Year Meeting Attendees, ABA

(Jan. 10, 2018),

https://perma.cc/2SQN-CMYA ................. 16, 17, 19

TABLE OF AUTHORITIES—Continued

Page(s)

Clio, 2022 Legal Trends Report,

https://www.clio.com/wpcontent/uploads/2022/09/2022-LegalTrends-Report-16-02-23.pdf .................................. 9

Philip George, Considerations for

Communicating with Clients via Text

Message, ABA Litig. Section, Ethics &

Professionalism Comm. (Jan. 27, 2023),

https://perma.cc/KR7A-746M ................................ 9

Robert Hartigan, 2024 Budgeting and

Planning TechReport, ABA Law Prac.

Div., Legal Tech. Res. Ctr. (Apr. 22,

2025), https://perma.cc/2LNM-K9TX .................. 10

Letter from Linda Klein, President, ABA, to

Gen. John F. Kelly, Sec’y of Homeland

Sec., U.S. Dep’t of Homeland Sec. (May

5, 2017), https://perma.cc/2C9P-DN5X ........... 9, 20

A. Nayak, The Mobile-AI Gap: The Problem

in Legal Tech No One is Talking About,

Artificial Law. (Mar. 3, 2026),

https://perma.cc/R3GJ-VBZB ............................ 8, 9

N.Y.C. Bar Ass’n Comm. on Pro. Ethics,

Formal Op. 2017-5 (2017) ...................................... 9

Anna Stolley Persky, As Customs and

Border Protection Agents Search More

Electronic Devices, How Can Lawyers

Keep Client Information Secure?, 112

ABA, Winter 2026 .......................................... 17, 18

TABLE OF AUTHORITIES—Continued

Page(s)

Steven M. Puiszis, Can’t Live with Them,

Can’t Live without Them—Ethical and

Risk Management Issues for Law Firms

that Adopt a “BYOD” Approach to Mobile

Technology, 2015 J. Prof. Law. 33 (2015)............ 11

Restatement (Third) of the Law Governing

Lawyers § 68 (2000) ............................................. 14

Jeff Richardson, 2022 ABA Tech Survey

provides information on attorney use of

iPhones and iPads, iPhone J.D. (Nov. 28,

2022), https://perma.cc/5ZKF-K4JK .................... 10

Mariah L. Sukalski, Lawyers Have Duty to

Protect Client Contacts in Smartphones,

49 Litig. News, Fall 2023 ..................................... 10

The New Wigmore: Evidentiary Privileges

§ 3.2.3 (4th ed. 2022) ............................................ 15

E. Norman Veasey, Protection of Client

Confidential Information from

Cyberattacks Is a Compelling Business

and Ethical Priority for inside and

outside Corporate Counsel, 75 Bus. Law.

1495 (Winter 2019-2020) ..................................... 17

IN THE

Supreme Court

of the United States

_________

GEORGE ANIBOWEI,

Petitioner,

v.

TODD BLANCHE, U.S. ATTORNEY GENERAL,

ET AL.,

Respondents.

_________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit

_________

STATEMENT OF INTEREST1

The American Bar Association (ABA) is the world’s

largest voluntary association of attorneys and legal

professionals. Its membership spans all fifty States,

the District of Columbia, and the United States territories, and includes attorneys, legislators, law professors, students, and others. 2 Many members must

travel internationally for work because, for example,

they practice for international law firms, represent

1

Counsel of record for the parties received timely notice of amicus’s intent to file this brief. See Sup. Ct. R. 37.2. No party or

counsel for a party authored this brief in whole or in part. No

party, counsel for a party, or person other than amicus or its

counsel made any monetary contribution intended to fund the

preparation or submission of this brief. See Sup. Ct. R. 37.6.

2

The ABA’s membership includes judges. However, neither this

brief nor the decision to file it reflects the views of any judicial

members of the ABA. The Judicial Division Council did not participate in the adoption or endorsement of this brief and did not

receive a copy of this brief before filing.

(1)

2

international clients, and work on cases with international aspects.

The ABA’s mission is to advocate for the rights of its

members and the interests of the legal profession

more broadly. It does this by working to promote ethical conduct among members of the profession, and by

advocating for increased public respect for the justice

system and attorneys’ roles in it. ABA members look

to the organization for guidance in navigating changes

to the legal practice, including technological changes

that require additional guideposts to safeguard attorneys’ and their clients’ information. The ABA regularly files amicus briefs in cases implicating the rights

and responsibilities of its member attorneys.3

Attorneys, like the Petitioner in this case, routinely

carry electronic devices containing confidential client

information and privileged communications, as well

as everyday personal information. For this reason,

government searches of an attorney’s electronic devices (just like his briefcase) threaten every attorney’s

ethical obligations to safeguard client information and

preserve the attorney-client privilege, as well as their

own personal privacy interests. See, e.g., Chatrie v.

United States, 146 S. Ct. 2193, 2199-2200 (2026).

The ABA is well positioned to bring this Court’s attention to the heightened privacy and privilege concerns presented by such searches. The ABA has long

advocated for the protection of such interests. For

3

See, e.g., ABA Amicus Br. 3, In re Grand Jury, No. 21-1397

(U.S. Nov. 23, 2022) (describing the importance of the attorneyclient privilege in “the fair operation of our adversarial system of

justice”); ABA Amicus Br. 2-3, Supreme Ct. of N.M. v. United

States, No. 16-1323 (U.S. June 5, 2017) (supporting the application of state rules of professional conduct to federal prosecutors).

3

example, in 2005, the ABA adopted Resolution

05A111, which affirms the ABA’s opposition to “policies, practices, and procedures of governmental bodies

that have the effect of eroding the attorney-client privilege and work product doctrine.”4 Similarly, in 2019,

the ABA adopted Resolution 19M107A, which “urges

the federal judiciary to recognize the substantial privacy and confidentiality interests, as well as the important national security and law enforcement interests, implicated by searches and seizures of electronic

devices at the border.”5 That Resolution also expresses

support for measures to “fully protect the attorney-client privilege, the work product doctrine, and the lawyer’s ethical obligation to maintain confidential information during border crossings.”6

The ABA also has substantial expertise regarding

the ethical obligations implicated by border searches

of attorneys’ devices. Through the Model Rules of Professional Conduct, which “serve as models for the ethics rules of most jurisdictions,” 7 and related ethics

guidance in Formal Ethics Opinions, the ABA has

helped define lawyers’ duties to preserve confidential

client information and address technological risks

4

ABA Resolution 05A111 at 1 (Aug. 9, 2005), https://www.americanbar.org/content/dam/aba/directories/policy/annual2005/2005-am-111.pdf.

5

ABA Resolution 19M107A (Jan. 28, 2019), http://www.americanbar.org/content/dam/aba/directories/policy/midyear2019/107a-midyear-2019.pdf.

6

7

Id.

See Am. Bar Ass’n, Model Rules of Professional Conduct,

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.

4

associated with protecting it. The question presented

directly implicates those duties and risks.

The ABA’s longstanding positions, advocacy, and expertise in the issues implicated by the border-search

exception, as well as the harms the current state of

the law works on the ABA’s attorney members, give

the ABA and its members a strong interest in the resolution of this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Modern electronic devices occupy a unique place in

the lives of attorneys and their clients, as they do with

nearly all Americans. See Chatrie, 146 S. Ct. at 2200.

Smartphones and laptops are no longer mere communication tools; they are repositories of immense quantities of personal and professional information, including confidential and privileged client communications,

attorney work product, and litigation strategies. This

Court has repeatedly recognized that electronic devices, while similar to private physical containers, differ significantly due to both the huge volume of information they contain and the intimate portrait they

can provide of a person’s life. E.g., Riley v. California,

573 U.S. 373, 393-397 (2014); Chatrie, 146 S. Ct. at

2205-09. Yet the circuits are divided over how the border-search exception to the Fourth Amendment applies to cell phones. In light of the “substantial privacy

and confidentiality interests” raised by searches of

electronic devices at the border—in particular

searches of devices owned by attorneys like Petitioner—and the need to “fully protect the attorney-client privilege, the work product doctrine, and the lawyer’s ethical obligation to maintain confidential

5

information during border crossings,”8 the ABA urges

this Court to grant the petition.

Modern cell phones are ubiquitous and contain vast

quantities of sensitive information. This Court has

recognized that smartphones have become a universal

feature of modern life and can contain immense quantities of personal information. Because electronic devices may contain years of emails, messages, location

information, photographs, documents, and other personal records, searches of those devices implicate privacy interests far greater than those associated with

traditional searches.

This is especially true as to electronic devices possessed and used by attorneys. Attorneys increasingly

rely on smartphones, laptops, and other portable electronic devices to communicate with clients, store work

product, and manage active matters. The widespread

adoption of mobile technology and workplace policies

permitting attorneys to use their own devices for work

means that attorneys frequently carry both personal

information and client-related materials on a single

device.

Attorneys (like Petitioner) have heightened privacy

interests in their devices in light of their ethical duty

of confidentiality and the attorney-client privilege.

ABA Model Rule 1.6 broadly protects all information

relating to client representation and requires attorneys to take reasonable steps to prevent inadvertent

and unauthorized disclosure or unauthorized access to

such information. This duty extends beyond attorneyclient privileged communications and encompasses information from any source relating to the

8

Resolution 19M107A, supra.

6

representation. The attorney-client privilege, in

turn—which is among the oldest and most fundamental protections recognized in American law—protects

confidential communications between an attorney and

her client for the purpose of providing or obtaining legal assistance. The privilege, like the duty of confidentiality, promotes full and candid communication between attorneys and clients, thereby enabling effective legal representation and advancing the administration of justice.

Warrantless border searches of attorneys’ electronic

devices threaten attorneys’ important ethical duty of

confidentiality and the attorney-client privilege. A

warrantless search of even one attorney’s device could

expose significant amounts of confidential and privileged information to third parties. In light of those

concerns, the ABA has identified measures legal professionals can take to navigate their ethical obligations under the border-search exception, such as by

traveling with an inexpensive phone scrubbed of any

confidential information. Such steps are highly unusual, costly, and burdensome, both to the attorney’s

ability to remain in contact with clients and to practice while traveling. Moreover, the split among the circuits over the question presented means that an attorney’s obligations differ depending on the jurisdiction

from which they enter the United States.

For all the foregoing reasons, and to provide national

clarity, this Court should grant certiorari. The ABA

has long urged the “federal judiciary to recognize the

substantial privacy and confidentiality interests, as

well as the important national security and law enforcement interests, implicated by searches and

7

seizures of electronic devices at the border.” 9 Petitioner’s work phone—which contained sensitive client

information—was searched without a warrant over

his vigorous protests. As a result, he no longer travels

with his work phone, to the detriment of his clients

and his own interests.

ARGUMENT

I. THE QUESTION PRESENTED IMPLICATES

SUBSTANTIAL PRIVACY AND

CONFIDENTIALITY INTERESTS.

Without judicial supervision, the border-search exception to the Fourth Amendment exposes the entirety of a traveler’s electronic data to government

agents.

Smartphones have long been ubiquitous. For over a

decade, cell phones have been a “pervasive and insistent part of daily life.” Riley, 573 U.S. at 385. Today,

reports show that about 91% of Americans own a

smartphone, while approximately 98% own a cell

phone of some kind. See Chatrie, 146 S. Ct. at 2200

(citing W. Bishop, Pew Research Center, Mobile Fact

Sheet (Nov. 20, 2025)).

Just as cell phone use has surged over the past quarter century, so too has the amount of information that

cell phones can store. This Court has likened the modern smartphone to a “minicomputer[] that also happens to have the capacity to be used as a telephone,”

and has emphasized that cell phones differ from traditional physical objects in both a “quantitative and a

qualitative sense.” Riley, 573 U.S. at 393. Even a

“basic” phone may contain “photographs, picture

9

Resolution 19M107A, supra.

8

messages, text messages, Internet browsing history, a

calendar, a thousand-entry phone book, and so on,”

while modern smartphones can store “millions of

pages of text, thousands of pictures, or hundreds of

videos.” Id. at 393-394. The devices now carried by an

overwhelming majority of Americans thus contain

vast quantities of sensitive information that can “reveal much more in combination than any isolated record.” Id. at 394.

Cell phones also generate a continuous stream of

data reflecting their users’ activities, communications, and locations at specific points in time. They

produce records that are “detailed, encyclopedic, and

effortlessly compiled,” including “time-stamped record[s]” of a user’s location, Carpenter v. United States,

585 U.S. 296, 301, 309 (2018), as well as detailed information about the user collected by “apps and other

services,” Chatrie, 146 S. Ct. at 2200 (quoting Riley,

573 U.S. at 396).

II. ATTORNEYS HAVE HEIGHTENED

PRIVACY AND CONFIDENTIALITY

INTERESTS IN THE CONTENTS OF THEIR

ELECTRONIC DEVICES.

Attorneys are not immune to this technological and

societal sea-change. Modern smartphones have become as “indispensable” to the practice of law as they

are “to participation in modern society.” Carpenter,

585 U.S. at 315. Like the general public, attorneys

routinely carry their phones at all hours of the day,

seven days a week.10 They do so to stay informed on

10

A. Nayak, The Mobile-AI Gap: The Problem in Legal Tech No

One is Talking About, Artificial Law. (Mar. 3, 2026),

9

their matters, connected to their practice, and in touch

with their clients. Attorneys’ constant availability is,

in part, a product of their clients’ expectations:

“[C]lients increasingly expect their lawyers to be responsive at all hours—including via text message.”11

In addition to the “millions of pages of text, thousands of pictures, or hundreds of videos” housed on

any particular phone, Riley, 573 U.S. at 393, attorneys’ devices contain confidential and privileged information. For example, a device may contain emails,

texts, or other communications across internet-based

messaging apps relating to the representation of a client. A device may also contain drafts of briefs, sealed

material, notes about a client’s litigation strategy, or

scheduled meetings concerning litigation that has not

commenced or transactions that have not been announced.12 Even something as innocuous as a contact

https://perma.cc/R3GJ-VBZB (from a 2026 study of 200 legal professionals, reporting that 89% of respondents “check work messages multiple times outside standard hours”); see also Clio, 2022

Legal Trends Report at 36, https://www.clio.com/wp-content/uploads/2022/09/2022-Legal-Trends-Report-16-02-23.pdf (reporting that “86% of lawyers work outside of the typical work day

* * * and 73% work outside of regular business days”) (free registration required to access report).

11

Philip George, Considerations for Communicating with Clients

via Text Message, ABA Litig. Section, Ethics & Professionalism

Comm. (Jan. 27, 2023), https://perma.cc/KR7A-746M.

12

See Letter from Linda Klein at 1, President, ABA, to Gen. John

F. Kelly, Sec’y of Homeland Sec., U.S. Dep’t of Homeland Sec.

(May 5, 2017), https://perma.cc/2C9P-DN5X (lawyers’ electronic

devices “typically contain information that is inherently privileged or otherwise confidential”); N.Y.C. Bar Ass’n Comm. on

Pro. Ethics, Formal Op. 2017-5 at 2 (2017) (searches of attorneys’

electronic devices at the border may involve the “review of

10

page may contain “identifying information about the

person the contact represents.”13

Put simply, what once resided in filing cabinets, correspondence files, banker boxes, legal pads, and briefcases is now frequently consolidated onto a single device.

Complicating matters further, in recent years, attorneys’ personal cell phone use has surged with the advent of “Bring-your-own-device” (BYOD) policies,

which permit employees to use the same device for

both personal and business purposes. According to the

ABA’s 2024 Legal Technology Survey, one third of respondents said their firm has a BYOD policy in place;

and in 2022, almost every respondent reported they

can use their personal devices to access their firm’s

network.14 Adopting a BYOD approach improves efficiency, not least because it allows for the consolidation

of devices and provides attorneys with the flexibility

to work using their preferred devices.

information stored on them, such as emails, text messages and

electronically-stored documents”).

13

See Mariah L. Sukalski, Lawyers Have Duty to Protect Client

Contacts in Smartphones, 49 Litig. News, Fall 2023, at 7 (noting

that a contact page may contain confidential information such as

the contact’s “phone numbers, email addresses, work or residence addresses, employer, birthday, nicknames, and a notes

section that could contain further information about the individual or how the phone owner knows the person”).

14

Robert Hartigan, 2024 Budgeting and Planning TechReport,

ABA Law Prac. Div., Legal Tech. Res. Ctr. (Apr. 22, 2025),

https://perma.cc/2LNM-K9TX; see also Jeff Richardson, 2022

ABA Tech Survey provides information on attorney use of iPhones

and iPads, iPhone J.D. (Nov. 28, 2022), https://perma.cc/5ZKFK4JK.

11

Attorneys, however, do not and cannot sacrifice their

ethical obligations for the sake of convenience. Indeed,

commingling personal and work devices “triggers a

number of unique risks for lawyers and law firms”;

primarily, the risk that non-public information may

be disclosed.15 As a result, lawyers must reconcile the

convenience and enhanced capabilities offered by the

use of their personal devices for work with their commitment to safeguard their clients’ confidential and

sensitive information.

In light of confidential and privileged information on

attorneys’ devices, searches of such devices implicate

significant “privacy concerns.” Riley, 573 U.S. at 386.

A client would not expect counsel to leave office doors

unlocked, filing cabinets open, correspondence files

unattended, or privileged materials strewn across a

conference table for government inspection. Yet because modern technology has consolidated the functional equivalent of those spaces onto a single device,

a search of an attorney’s cell phone can expose that

vast store of confidential client information and privileged communications. Such searches thus jeopardize

attorneys’ professional obligations to maintain confidentiality over client information and protect attorney-client privileged information.

Those obligations are related but distinct. The duty

of confidentiality broadly protects all information relating to the representation of a client, regardless of

source, absent informed client consent or implied authorization. The evidentiary attorney-client privilege,

15

Steven M. Puiszis, Can’t Live with Them, Can’t Live without

Them—Ethical and Risk Management Issues for Law Firms that

Adopt a “BYOD” Approach to Mobile Technology, 2015 J. Prof.

Law. 33, 34 (2015).

12

in turn, protects a subset of confidential communications between lawyers and clients and their agents,

made for the purpose of obtaining or providing legal

assistance. These protections exist because clients can

obtain meaningful legal advice and lawyers can provide effective representation only when clients are

able to communicate fully and candidly with counsel,

secure in the knowledge that their confidential information will remain protected.

Attorneys Have A Duty To Maintain

Confidentiality Over Client Information

On Their Devices.

The duty of confidentiality is among the most fundamental obligations imposed upon attorneys. Today,

this duty is codified in ABA Model Rule 1.6, which has

been adopted in whole or substantial part by most jurisdictions.16

Under Model Rule 1.6, a lawyer generally “shall not

reveal information relating to the representation of a

client” absent client consent or implied authorization.17 As explained in the comments to Rule 1.6, confidentiality is “[a] fundamental principle in the clientlawyer relationship” that “contributes to the trust

that is the hallmark of the client-lawyer relationship”

and encourages clients “to communicate fully and

frankly with the lawyer.”18 The ethical rule applies to

16

See Attorneys’ Duties to Protect Client Data, Practical Law

Practice Note w-014-0379, State Survey: Adopted Duty to Prevent Inadvertent or Unauthorized Disclosure Rule (table reflecting that 46 states have adopted Rule 1.6(c) and/or accompanying

comments 18 and 19 in some form).

17

Model Rules of Pro. Conduct r. 1.6(a) (ABA 1983).

18

Model Rules of Pro. Conduct r. 1.6 cmt. 2 (ABA 2002).

13

“all information relating to the representation, whatever its source,” including information that falls outside the attorney-client privilege and work-product

doctrine.19

Rule 1.6 does not only generally prohibit disclosure

of client information; it requires attorneys to affirmatively protect it. Rule 1.6(c) directs lawyers to “make

reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to,” information relating to the representation of a client.20

This obligation works in tandem with Rule 1.1’s requirement that lawyers maintain necessary

“knowledge[] and skill,” 21 which involves “keep[ing]

abreast of changes in the law and its practice, including the benefits and risks associated with relevant

technology.”22

In an era when vast quantities of client information

are stored electronically, attorneys must understand

and address technological risks that may compromise

client confidentiality. Failure to do so can carry real

consequences, including sanctions and fiduciary-duty

claims. See, e.g., In re Conduct of Conry, 491 P.3d 42,

57, 60 (Ore. 2021) (publicly reprimanding attorney for

“violat[ing] the duty to protect client confidences * * *

when he revealed client’s full name in response to [a]

negative [online] review[]”); People v. Braham, 470

P.3d 1031, 1031 (Colo. 2017) (suspending counsel who

“sent two emails to [a] bankruptcy trustee and others

in which he disclosed confidential information”);

19

Model Rules of Pro. Conduct r. 1.6 cmt. 3 (ABA 1983).

20

Model Rules of Pro. Conduct r. 1.6(c) (ABA 1983).

21

Model Rules of Pro. Conduct r. 1.1 (ABA 1983).

22

Model Rules of Pro. Conduct r. 1.1 cmt. 8 (ABA 2012).

14

Hiscox Ins. Co. v. Warden Grier, LLP, 474 F. Supp. 3d

1004, 1008 (W.D. Mo. 2020) (denying motion to dismiss breach of fiduciary duty claim against law firm

that failed to protect client information from a

cyberattack). More broadly, courts have recognized

that technological incompetence can itself constitute

professional misconduct, particularly when it impairs

an attorney’s ability to meet discovery and other professional obligations. See, e.g., James v. Nat’l Fin.

LLC, No. 8931-VCL, 2014 WL 6845560, at *12 (Del.

Ch. Dec. 5, 2014) (awarding sanctions for discovery

misconduct and explaining that under Model Rule 1.1

comment 8, “‘deliberate ignorance of technology is inexcusable’”) (quotation omitted); DR Distribs., LLC v.

21 Century Smoking, Inc., 513 F. Supp. 3d 839, 943,

961 (N.D. Ill. 2021) (quoting the ABA’s Commission on

Ethics 20/20’s statement that “[l]awyers must understand technology in order to provide clients with competent and cost effective services” when imposing

sanctions for counsel’s failure to collect and disclose

electronically stored information).

Attorneys Are Under An Obligation To

Preserve Privileged Communications On

Their Devices.

Certain confidential client information related to the

representation of the client receives an additional

layer of protection under the attorney-client privilege,

which safeguards confidential communications between the attorney and the client made for the purpose of obtaining or providing legal assistance. See

Fisher v. United States, 425 U.S. 391, 403 (1976); Restatement (Third) of the Law Governing Lawyers § 68

(2000). The attorney-client privilege—which belongs

to the client, not the lawyer—is deeply rooted in the

15

history and tradition of the legal profession. See The

New Wigmore: Evidentiary Privileges § 3.2.3 (4th ed.

2022) (noting that the privilege dates to sixteenth-century England).

Like an attorney’s broader duty of confidentiality,

the attorney-client privilege exists to ensure that clients may seek legal advice without fear that their disclosures will later be revealed to others. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S.

343, 348 (1985). Effective representation requires

counsel to be “fully informed by the client.” Upjohn Co.

v. United States, 449 U.S. 383, 389 (1981); see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108

(2009). Clients thus must often disclose information

spanning every aspect of their lives and affairs, including personal, financial, medical, business, familial, and other sensitive matters. As this Court has long

recognized, a strong attorney-client privilege permits

and protects such candor. See Swidler & Berlin v.

United States, 524 U.S. 399, 409 (1998) (holding that

application of the privilege should not turn on

“[b]alancing ex post the importance of the information

against client interests”).

In addition to furthering private ends between the

attorney and her client, the attorney-client privilege

advances the public purposes of fostering “observance”

with the law and supporting the “administration of

justice.” Upjohn, 449 U.S. at 389; see also Jaffee v.

Redmond, 518 U.S. 1, 11 (1996); Hunt v. Blackburn,

128 U.S. 464, 470 (1888). In an age where such communications occur digitally, protecting materials on

attorneys’ electronic devices serves the public good.

16

Absent Judicial Supervision, Border

Searches Of Attorneys’ Devices Impose

Unique Burdens On Attorneys And Their

Clients.

When government agents discretionarily access the

devices attorneys use to communicate with clients and

perform their work, the intrusion threatens the privacy and protections that exist to benefit clients, facilitate legal representation, and promote the fair administration of justice. If clients believe the information entrusted to counsel may be accessed through

routine warrantless searches of those devices, then

clients very well may hesitate to communicate candidly, and attorneys may be deprived of the information necessary to effectively serve their clients.

Worse yet, in light of the amount of confidential and

privileged information that may be on any particular

device, a warrantless search of even one device may

unreasonably expose countless pieces of confidential

and/or privileged information to government review.

The unique confidentiality and privacy concerns attendant to searches of attorneys’ devices have compelled the ABA to identify measures legal professionals can take when traveling internationally to help

navigate the border-search exception and attorneys’

professional and ethical obligations. 23 The ABA has

recommended that traveling lawyers “[c]onsider obtaining a new but inexpensive electronic device” to

hold “only necessary information” and “placing

23

Hon. Daniel J. Crothers & Barbara S. Gillers, Electronic Device Advisory for Mid-Year Meeting Attendees, ABA (Jan. 10,

2018), https://perma.cc/2SQN-CMYA; see also Pet. 27-28 (discussing “defensive measures” other organizations have developed in light of the border-search exception).

17

electronic devices in ‘airplane’ mode or having all wifi, Bluetooth and cellular connections terminated and

disabled” “[b]efore approaching a border inspection

area.”24 Privacy experts agree that the border-search

exception should make “lawyers * * * extra vigilant

about securing protected attorney-client information

on their phones and laptops when traveling,” and accordingly take measures like purchasing a “loaner laptop that is ‘clean’ of any client information.”25

These measures are highly unusual and unduly burdensome. “Burner” devices—cheap, anonymized devices—are associated more with drug traffickers than

practicing attorneys. E.g., United States v. Wise, 74

F.4th 953, 955 (8th Cir. 2023) (explaining that “a

‘burner’ phone * * * is commonly used in drug trafficking to hide the dealer’s identity”). And the use of such

devices is burdensome—if not impractical—for many

attorneys. Travel-only devices must be purchased, set

up, and/or configured for the particular attorney who

is using that device, if the device is shared among several at a law firm. Moreover, as explained above, the

modern practice of law involves clients who expect to

be able to communicate with their attorneys at all

times. See supra p. 9. Attorneys are also under an

24

25

Crothers & Gillers, supra, at 6-7.

Anna Stolley Persky, As Customs and Border Protection

Agents Search More Electronic Devices, How Can Lawyers Keep

Client Information Secure?, 112 ABA, Winter 2026, at 22-23; E.

Norman Veasey, Protection of Client Confidential Information

from Cyberattacks Is a Compelling Business and Ethical Priority

for inside and outside Corporate Counsel, 75 Bus. Law. 1495,

1513-14 n.62 (Winter 2019-2020) (“[I]nternational travel can be

problematic for the lawyer who brings her smart phone, laptop,

or other device containing confidential client information across

international borders * * * .”).

18

obligation to “promptly” communicate with their clients about certain matters, “promptly comply with

reasonable requests for information,” and “keep the

client reasonably informed about the status of the

matter.”26 It should go without saying that an attorney who travels with a device scrubbed of confidential

and privileged information may be hindered from

meeting these client expectations and professional obligations. Indeed, in light of the fact that lawyers’ electronic devices now may centralize everything about a

matter into one device, see supra pp. 9-10, parting

with that device—even for a few days—can burden attorneys’ fundamental ability to practice.

Making matters worse, commentators have recognized that the steps an attorney may take to minimize

the risk of exposing confidential or privileged information can also make that attorney’s device “suspicious.” 27 The very actions an attorney may take in

light of their obligation “to prevent the inadvertent or

unauthorized disclosure of, or unauthorized access to,

information relating to the representation of a client”28 thus may only serve to exacerbate the government’s intrusion into their personal and professional

effects.

The division between the circuits aggravates matters further. As Petitioner has explained and as the

ABA has long recognized, the circuits are split over

how the border-search exception applies to electronic

devices. See Pet. 9-12; Resolution 19M107A, supra,

26

Model Rules of Pro. Conduct r. 1.4(a)(1), (a)(4), (a)(3) (ABA

1983).

27

Persky, supra, at 23.

28

Model Rules of Pro. Conduct r. 1.6(c) (ABA 1983).

19

Report at 6 (“[T]here is now a clear split among federal

circuits that should justify intervention by the U.S.

Supreme Court.”). This split has significant, and unjustified, real-world consequences. For example, an

attorney entering the United States from California is

generally protected by a warrant requirement, but an

attorney entering from Texas is not. See Pet. 9-10. Attorneys, particularly those at large firms, thus must

not only juggle the ethical rules of their jurisdiction of

licensure,29 but also the particular constitutional rule

of their destination.

III. THIS COURT SHOULD RESOLVE THE

QUESTION PRESENTED TO PROVIDE

NEEDED CLARITY FOR ATTORNEYS AND

THEIR CLIENTS.

This case provides an excellent opportunity for this

Court to address the question presented and vindicate

the substantial privacy and confidentiality interests

implicated by searches of electronic devices at the border. The number of electronic devices searched by government agents at the border has skyrocketed in recent years. See Pet. 22-23. Consistent with that overall trend, “searches of lawyers’ electronic devices at

the border” are “increasingly frequent.”30

The ABA believes that the current state of the law,

with the circuits split in multiple ways, is untenable

and significantly harms clients’ interests. In 2019, the

ABA adopted a Resolution “urg[ing] the federal

29

Crothers & Gillers, supra (suggesting that attorneys determine “whether the Rules of Professional Conduct in your jurisdiction of licensure would permit you to consent to a ‘request’ for

inspection, or to accede to a ‘demand’”).

30

Resolution 19M107A, supra, Report at 9.

20

judiciary to recognize the substantial privacy and confidentiality interests, as well as the important national security and law enforcement interests, implicated by searches and seizures of electronic devices at

the border.”31 The ABA’s formal recognition of the fundamental privacy and confidentiality interests at

stake during searches of electronic devices at the border builds on its prior advocacy. In 2017, then-ABA

President Linda Klein wrote DHS on behalf of the organization’s members to “express concern about maintaining the confidentiality of client information contained in lawyers’ electronic devices” during searches

at the border. 32 President Klein acknowledged that

“security at the nation’s borders is of fundamental importance,” and that attorneys traveling across the border should expect to “become subject to routine

searches by CBP and ICE agents.” 33 But President

Klein stressed that the critical importance of border

security must be weighed against attorneys’ “fundamental” interests in protecting their clients’ confidential information.34

In response to the ABA’s advocacy, CBP, but not

ICE, issued a revised Directive addressing how officials should respond when an attorney asserts privilege. 35 For example, the revised Directive instructs

agents to “segregat[e] * * * privileged material from

other information” and states that privileged material

31

Resolution 19M107A, supra.

32

Klein Letter, supra, at 1.

33

Id.

34

Id.

35

CBP Directive No. 3340-049A, Border Search of Electronic Devices (Jan. 4, 2018).

21

“will only be shared with agencies * * * that have

mechanisms in place to protect appropriately such information.”36 While commendable, “the Founders did

not fight a revolution to gain the right to government

agency protocols.” Riley, 573 U.S. at 398.

This case presents the opportunity to conclusively

resolve this pressing question. Petitioner is an attorney whose work phone—which contained “extremely

sensitive information about his clients and their

cases, including call logs, voice mails, text message

threads with clients, * * * work emails,” and “drafts of

confidential filings”—was searched without a warrant

over his “vigorous[] protest[s].” Pet. App. 112a-113a.

Government agents thus likely had access to—and remain in possession of, see Pet. 6—confidential and

privileged information.

Such a search strikes at the core of every attorney’s

professional obligations and duties. Even more problematic here, Petitioner is an immigration attorney

frequently adverse to DHS—meaning that the search

of his device may not only have exposed confidential

and privileged information, but did so to a litigation

adversary. See Pet. 24. And in the wake of this search,

Petitioner no longer travels with his work phone, Pet.

App. 13a, hindering “his ability to remain accessible

[to his clients] while abroad,” Pet. 27.

This case is thus a prime example of both the risks

of the current border-search regime and the extraordinary and burdensome steps attorneys may take to

avoid exposing confidential and/or privileged information to a warrantless search when they re-enter the

United States.

36

Id. §§ 5.2.1.2, 5.2.4.

22

CONCLUSION

For the foregoing reasons and those described by Petitioner, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

JO-ANN TAMILA SAGAR

MICHAEL J. WEST

JACKSON B. SKEEN

HOGAN LOVELLS

CADWALADER US LLP

555 Thirteenth St., N.W.

Washington, D.C. 20004

BARBARA J. HOWARD

Counsel of Record

PRESIDENT

AMERICAN BAR ASSOCIATION

321 N. Clark St.

Chicago, IL 60654

312-988-5000

amicusbriefs@americanbar.org

ERICA J. SHULER

HOGAN LOVELLS

CADWALADER US LLP

8350 Broad St., Floor 17

Tysons, VA 22102

Counsel for Amicus Curiae American Bar Association

SEPTEMBER 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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