Future Law

Ethical Considerations for Lawyers When Texting Clients

Asian man using mobile phoneIt comes as no surprise that text messaging, with its ease of access and quick response rate, continues to increase in popularity as a method of communication. And texting with legal clients is no exception.

The use of more tech-enabled forms of communication was highlighted as a standard expectation among clients in Clio’s 2021 Legal Trends Report.

For example, while traditional forms of communication — such as a phone call (71%) or in-person discussion (71%) – are how clients want to communicate when they’re in the early stages of a legal matter, 53% of clients said they would prefer to communicate with their attorney about key decisions during a legal matter via text message and 59% said they would like to receive status updates through text.

Using text messages as a form of communication meets consumer demand while offering lawyers and law firms many benefits, like the added ease of scheduling appointments, sending reminder texts for appointments or court appearances, and even billing reminders. And while email may remain the grand champion of modern-day communication for now, it seems counterintuitive not to consider text messaging for improved customer service and client communication.

However, while text messaging may offer convenience, does it create the added risk of sacrificing security and potential ethical pitfalls with what may be highly sensitive information?

Here are four considerations to keep in mind when texting your clients:

  1. Customer service
  2. Confidentiality
  3. Communication
  4. Documentation

Customer Service

In addition to texting or SMS communication, many clients prefer various other electronic communication tools. These can include instant messaging services, like Facebook Messenger or WhatsApp, or social media applications like sending a “snap” on Snapchat.

While I don’t expect many lawyers will “snap back” in response to client inquiries, lawyers should expect to receive communication via various means, including without initiating them.

Clients increasingly prefer accessible forms of communication and information-sharing, like text messaging and secure portals. Firms that adapt to these preferences will attract more clients and achieve higher referrals and satisfaction rates.

Nevertheless, setting expectations from the outset remains key. At a minimum, lawyers and clients should discuss what forms of communication will and won’t be used. Better yet, while warning clients that electronic communication may not be secure and that precautions should be taken, note in your engagement agreement the manner of how you will communicate with the client. Set the stage at intake, and stay on the stage you set.

Lastly, don’t discount the utility of texting as a part of your business model. For example, you may find great benefits in certain automated-texting options, which can help you send out simple communications (such as meeting and court reminders, case updates, and billing reminders, similar to using a chatbot on your website).

Clients may be most comfortable with that medium and appreciate your service. And, if a more detailed or confidential follow-up discussion is needed, it can be routed to a more appropriate channel.

Confidentiality

Client communication and information-sharing (documents, pleadings, contract drafts, and the like) must be protected, and our ethical rules require “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client” (Ill. R. of Prof. Cond. 1.6(e)).

We must maintain the confidentiality of information related to client representation unless the client gives informed consent to release the information, or the disclosure is otherwise permitted. While it can be argued that hacking or phishing attacks pose a significant threat when using email or text communication, let me offer an example of how inadvertent disclosure might be a bigger threat.

Take the “message echoing” example, as I call it. You send iMessages back and forth with your client via your iPhone. All the while, your other Apple device sits open on your home office desk with the same application open. Your entire communication thread could be visible to anyone strolling by. The same could be said of an email chain visible on a logged-in device.

Another common example of an inadvertent disclosure can come by simply not disabling your message or email previews. Again, this can occur on a device you have with you or any device you’re logged into (e.g., your kid is watching their favorite show on your iPad as each incoming message previews at the top of the screen).

By setting your mobile device to only provide an alert instead of a message preview, you’ll better avoid unwittingly disclosing confidential communication. And be sure to remind your clients to do the same for devices on their end.

Even while end-to-end encryption on applications such as WhatsApp, iMessage, and Signal offers protection, the human factor is always going to be the biggest threat to security and, consequently, confidentiality.

Communication

Lawyers have an ethical obligation to keep the client reasonably informed (Rule 1.4(a)) and “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” (Rule 1.4(b)). Texting your client can be a great way to ensure promptness, but it’s not so great for ensuring the completeness of a needed communication.

Depending on the parameters you’ve set early on, consider limiting your text messaging to situations allowing for a short update or conveying a simple note. Should a more complex question or topic arise, don’t hesitate to continue the communication on another medium, such as an email, phone call, or even a video chat.

Lastly, whatever the mode of communication, be sure to respond and to respond quickly; this is paramount to quality service. Should your reply demand a more detailed explanation or the sharing of a document, respond to let the client know you received their message and will be in touch to address the matter. That way the client feels heard and you can manage your time or delegate appropriately.

Documentation

The contents of a client’s file include both hard copies and electronic forms of communication, documents, and other records. The Model Rules denote a “writing” as “a tangible or electronic record of a communication or representation, including … electronic communications.” Rule 1.0(n).

It’s reasonable to assume that most of a client’s file is in the form of electronic communication. Thus, if a client requests a copy of their file or retains new counsel, the firm must provide them with the complete file related to their representation, i.e., the contents of a client’s file belong to the client.

Rule 1.16(d) demands a lawyer “take steps to the extent reasonably practicable to protect a client’s interests” including “surrendering papers and property to which the client is entitled.”

It’s incumbent upon the lawyer to manage electronic communication and other files in a way that will allow for collating and releasing a file to a client while maintaining the safekeeping of other information and the records of other clients. Rule 1.15.

I think you’d agree that memorializing client text messages using screenshots is too burdensome, and even impossible at times. It may suffice as a one-off, however, a standardized process needs to be established.

Explore if your legal practice management software offers an option to memorialize such communication. Alternatively, instead of trying to find a third-party application to document the communication, utilize an existing tool to “chat” with your client, such as an instant message element on your client portal.

The added benefit is that the communication is likely more secure and automatically documented, greatly reducing human error in making sure all discussions make it into the file.

Conclusion

The reality is that texting is the preferred method of communication for many people today. Keep these considerations in mind when determining your ethical obligations to clients who want to fire off a text message.

Texting can be a useful tool, so lead the conversation on preferred communication methods when possible; be upfront about how you might use these methods and their limitations. Provide your client with quality service while keeping your ethical obligations at the forefront.

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