Those of us with teenage children know that “texting” is the preferred communication method of the young. But texting is no longer just for casual conversations between friends.
Increasingly, texting has become the modus operandi of our clients and others with whom we do business. This new wave of client communication has led to a host of ethical and professionalism quandaries.
Fortunately, the ethical rules are elastic enough to provide guidance even though the available methods of communication seem to be changing monthly. The rules proscribe behavior regardless of the means used. For example, the confidentiality of information governed by Rule 1.6 requires a lawyer not to reveal information relating to the representation of a client regardless of the method that could be chosen.
Unlike ethics, professionalism cannot be condensed to clear ethical rules. Rather, as modern lawyers, we must remain aware of core concepts of professionalism as we collect more devices and engage in digital communication. Simultaneously, we must consider how technology has transformed the information that we provide clients, and the various ways we use to communicate that information.
We are an information providing profession. In terms of service to our clients and building a community of legal professionals, the Internet provides resources far beyond those available in our local libraries and communities. We can access information that affects our client, whether it be a court decision, stock price or administrative ruling, nearly instantaneously from anywhere in the world. We can focus and manage incoming information to better serve our clients by monitoring conferences, events and seminars.
Technology Transforms Communication
Technology has radically transformed how we communicate that information. Over the past couple decades, a plethora of new ways to communicate have sprung up, complicating lawyers’ professional lives. The proliferation of social media and other Internet-assisted communication makes it more important than ever that lawyers understand professional communication and guard the core values of the profession while embracing the possibilities to better serve clients that the new media provide.
Where to draw the professionalism line depends upon whether the communication is intended to be public or private. In terms of private communications, emails have replaced phone calls and faxes in communications between lawyers and between lawyers and clients. It is important to protect confidentiality of client communications by passwords or encryption. Use “strong” passwords that combine letters, numbers and symbols, not the easy-to-remember, easy-to-hack passwords.
Now that email is regularly reviewed on mobile devices, we also have to be aware of publicly accessing emails within the view of passersby on the street or in the coffee shop, or our neighbors on the train or in an elevator.
The same goes for texts. Often, cell phones are placed on the table at a social gathering. If the phone is face up and another at the table reads the beginning of a text message from your client, is privilege compromised? Why be the first test case in Illinois? Instead, set your cell phone notifications to not show a preview of messages.
Because our phones, tablets, laptops and other mobile devices contain memory, they also should be equipped with kill switches—commands that “brick” or deactivate the device on connection to the Internet should they be lost or stolen. Steps should also be taken to fully erase a device’s memory before it is discarded.
Social Media Opportunity
In terms of communications intended to be public, social media channels offer an opportunity for lawyers to maximize their reach and access information and resources beyond what is readily available in their geographic region. Remember, however, that social media is public and should never be used to communicate with clients or about their matters.
LinkedIn offers an opportunity for lawyers to put their credentials on a network and to publish articles in their field. According to research conducted by the American Bar Association, nearly 90% of attorneys responded that they used LinkedIn. Lawyers may use Twitter to keep up on research and individuals who are thought leaders in their field.
Facebook is generally viewed as a more personal channel though it too can be used for business purposes. Although privacy settings may restrict who may have access to Facebook postings, lawyers should be careful about posting photos or comments that may put them in a compromising position.
For litigation attorneys, social media platforms’ real value may be in investigating. The American Bar Association in April of this year issued Ethics Opinion 466 stating that a lawyer may passively review a juror or potential juror’s public presence on the Internet without violating Rule 3.5(b) which prohibits ex parte communications with a juror. The opinion likened the public areas of a juror’s pages as any other publicly available information that may be gleaned, such as from driving down a potential juror’s street. However, requesting access to a private area on a juror’s social media platform, through a “friend” request on Facebook or otherwise, would be deemed an improper communication. The opinion also stated that an automatic notification informing a juror or potential juror that her site has been viewed would not constitute a communication from the lawyer in violation of Rule 3.5(b).
It’s a brave new world of communication out there. Clearly we cannot put our heads in the sand and avoid using technology to better serve our clients. To be successful, lawyers must understand and use technology and embrace efficiency and innovation. We owe it to both our clients and ourselves.
This post previously was published in the Chicago Daily Law Bulletin.