Is It Okay For a Lawyer to Text with Clients?

Is It Okay For a Lawyer to Text with Clients?

Is it okay for a lawyer to text with clients? This question is one that keeps coming up. The short answer is yes; but just because you can do something, doesn’t mean it’s always a good idea. I say this because texting is ubiquitous in our culture. Instead of taking the time to compose an email or pick up a phone, it takes far less time to send a quick text at any time of the day or night regardless of the setting. It’s such an easy thing to do without giving it any thought, and therein lies the problem. When a lawyer fails to factor in the associated ethical and risk management concerns, a decision to enter into a text message exchange with a client can in the end prove to be a bad idea.

What are the ethical and risk management concerns with texting?

It all starts with Comment [8] to ABA Model Rule 1.1 Competency, which reminds lawyers that they are to “keep abreast of changes in the law and its practice to include the benefits and risks associated with relevant technology.”  When lawyers communicate with clients via text messaging, they need to be thinking about the ramifications of doing so.

Speaking personally, I think a decision to provide a cell number to more than a select few clients is a bad idea unless you have established defined boundaries for its use upfront. It’s a wellness issue for me. I’m not a fan of 24/7 availability because everyone needs downtime. The problem is when people send a text, they are usually expecting an immediate response, even if it’s after their lawyer has gone home for the day. In the absence of predefined boundaries, the ability to manage client expectations and benefit from some well-deserved recuperative time can quickly become a challenge.

The informality of text messaging and the fact that this type of communication often occurs on the fly is also of concern. Short and succinct text messages are problematic if their purpose is to pass along legal advice or if clients are relying on them to facilitate their decision-making process. For example, using text messaging as the way to pass along thoughts on the terms of a settlement offer or having a client discuss key terms that need to be included in a contract would be a bad idea. At a minimum, it’s an inefficient use of time that can needlessly result in a larger bill than the client might be expecting all due to the need to send multiple texts to make sure you have all the information you need as well as to confirm the client has correctly understood the exchange. As a risk manager, I strongly believe such substantive discussions are better had in person or over the phone if the circumstances permit.

Compounding the situation is the struggle some lawyers and/or staff have when it comes to capturing and preserving text message exchanges as part of the client file. Remember, in the context of a malpractice claim or disciplinary matter, what isn’t documented can all too quickly become something that didn’t happen or wasn’t said; and now you’ve got a new problem. So, if anyone at your firm is unable or unwilling to capture and preserve any and all substantive text messages, then I’d seriously consider limiting their use of texting to informational courtesy exchanges only. For example, a text that confirms an appointment time, lets a client know the lawyer is running late, or explains where to meet at the courthouse would be fine. Anything beyond that would not be.

One concern that is easily overlooked is in not knowing if the text messages being sent are actually being received and then read by the correct party. For example, do you take the time to stop to think about who might have access to the client’s cell phone or ever wonder if the client is having their text messages show up on the family computer at home? Making matters worse, how would you know that a client has texted you an urgent message when your phone is off? What might happen if the client assumes you received it and trusts that you will promptly address the matter when you didn’t and thus couldn’t? Could this be a problem? It already has been for others.

Even if you take steps to make sure every text message is received and only read by the intended recipient, this doesn’t mean you have responsibly followed through on your duty to maintain client confidences. For example, messages sent by way of the widely used SMS and MMS messaging methods are unsecured when in transit, which means these messages can be read by anyone who intercepts them. And while iMessages sent to other Apple users are encrypted while in transit, they are unencrypted when set to SMS users.

The final concern I wish to discuss is the BYOD (Bring Your Own Device) problem. In the absence of a policy that proactively addresses using personal devices for texting clients, staff and attorneys can all too easily step out of bounds. For example, the use of free third-party apps such as WeChat or WhatsApp may contain vulnerabilities that cybercriminals can exploit. A much better approach would be to have everyone use a paid for business use enterprise-based solution. Here’s another way to think about the BYOD problem. For many firms, allowing staff and attorneys to use personal email for work is strictly prohibited. Why should text messaging be any different? It shouldn’t.

I share all the above to underscore the importance of and the whys behind Comment [8] to ABA Model Rule 1.1. In my mind, the benefits of texting are self-evident. It’s the risks that aren’t; and as a lawyer, how can you ever address any of the risks if you fail to put sufficient energy and time into determining what the risks actually are? There are ways to have a secure instant message exchange and ways to make sure the record of the exchange is captured, preserved, and properly secured. Signal or Kenect are just two examples of how to do so. If you have no idea where to start, or just want a little professional guidance, I suggest you reach out to your IT support because there is no one size fits all solution.

Once you have a handle on the associated risks, I would encourage you to establish written text messaging guidelines, to include an explanation as to the whys behind them and see that all staff and attorneys are properly trained on how to follow them. This can be an effective way to manage the risks that come with text messaging. Of course, this assumes everyone abides by the rules, which means they will need to be enforced. If that’s not a hill you wish to climb, then an alternative might be to place significant limitations on what can be shared via text message, when it can be shared, and on what devices. Regardless, don’t allow an “anything-goes attitude” to turn into your firm’s default text messaging policy. Those kinds of policies rarely play out well over the long term. Just saying…

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Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.