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Ask the Experts at 2Civility.org

Ethics Reminders for Lawyers Texting Clients

By Mark C. Palmer

Question: I feel like I did all I could over the last few years to keep my cell number out of clients’ hands. But I think I opened the floodgates when I recently began allowing clients to text me. The convenience factor and desire to modernize my customer service won out, or at least that’s what I told myself. Now that I’ve opened the door to another channel of communication, what ethics pitfalls might come from texting clients?

Answer: In previous articles, I’ve focused on ways to successfully use email — “the grand champion of modern-day communication” – as well as try to get lawyers to ditch email for more secure client engagement (read: client portals). But I’m glad to see the topic of text messaging come up. It’s an important reminder of how we can apply the same ethics rules to novel techniques of delivering legal services. In other words, the rules don’t change, just how we apply them. Let’s dig in!

Just as I’ve asserted that secure client portals should replace email communication with clients, text messaging should follow the same logical progression for how we engage with clients and store information on attorney-client matters.

So, just as you’d take a call from a client on your mobile device, you may likewise fire off an email, text message or instant message. However, while they may offer convenience, are we sacrificing security and embracing potential ethical pitfalls with what may be sensitive information?

Four Ethics Considerations for Lawyers Texting Clients

Here are four considerations for lawyers to keep in mind when texting messaging with clients:

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

1. Customer Service

While you’ve asked specifically about texting or SMS communications, many clients use and prefer various electronic communication tools other than email. These can include instant messaging services like Facebook Messenger or WhatsApp, or other social media tools like sending a “snap” on Snapchat.

This use of more tech-enabled forms of communication was highlighted as a standard expectation among clients in the Clio 2021 Legal Trends Report. Accessible forms of communication and information-sharing are much more preferred than previously, including text messaging and secure portals. Firms that adapt to these preferences will attract more clients and achieve higher satisfaction rates and referrals.

Nevertheless, expectation setting from the onset remains key. At a minimum, lawyers should discuss with clients what forms of communication will be (and won’t be) used. Better yet, while warning clients that electronic communication may not be secure and that they should take precautions, a best practice would be to 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 completely discount the utility of texting clients as a part of your business model. For example, you may find great benefits in certain automated options that can help you send out simple communications (such as meeting and court reminders, quick case updates, and billing reminders, similar to using a chatbot on your website).

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

2. Confidentiality

Client communication and information-sharing (documents, pleadings, contract drafts and the like) must be protected, and our ethics rules require “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client” (ABA Model Rule 1.6(c)).

We must maintain the confidentiality of information relating to our representation of a client unless the client gives informed consent, or the disclosure is otherwise permitted. While it could be argued that hacking or phishing attacks can pose a great threat to email and text messaging alike, 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: An inadvertent disclosure can come by simply not disabling your message or email previews. Again, this can occur on the device you have with you or any device you may be logged into (e.g., your kids are 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. 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 is good protection, the human factor will always be the biggest threat to security and, consequently, confidentiality.

3. 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 mode of ensuring 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 via another medium, such as an email, a phone call, or even an in-person meeting or video chat.

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

4. Documentation

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

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 the complete file related to their representation, i.e., the contents of their 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. See 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 at times — however, a standardized process needs to be established. Be sure to explore whether your practice management product has an option to memorialize such communication.

Alternatively, instead of trying to find a third-party application to document the communication, you may be better off utilizing an already 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 in the client file, greatly reducing human error in making sure all discussions make it into the files.

Be Upfront With Clients

The reality is 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 to converse.

Texting can be a useful tool, so lead the conversation when possible. Be upfront about how you may use it as well as its limitations. Provide your client with quality service while keeping your ethical obligations at the forefront.

About the Illinois Supreme Court Commission on Professionalism

The Illinois Supreme Court Commission on Professionalism was established by the Illinois Supreme Court in 2005 under Supreme Court Rule 799(c) to foster increased civility, professionalism and inclusiveness among lawyers and judges in Illinois. By advancing the highest standards of conduct among lawyers and judges, the Commission works to better serve clients and society alike. For more information, visit 2Civility.org and follow @2CivilityOrg.

Illustration ©iStockPhoto.com

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Mark C. Palmer Mark C. Palmer

Mark C. Palmer serves as Chief Counsel at the Illinois Supreme Court Commission on Professionalism. Mark writes on civility, professionalism and future law for the Commission’s 2Civility blog and delivers statewide professionalism programming, including a lawyer mentoring program, to attorneys and law students across Illinois. A prior trial attorney with civil and criminal experience in state and federal courts, additionally Mark has served as an adjunct professor at the University of Illinois College of Law and the University of Illinois Police Training Institute. Follow him @palmerlaw.

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