In the past decade, texting has become a dominant form of communication between friends and family members. While similar to email correspondence, texting is different. Texting is more convenient, quicker and less formal than email correspondence.
In texts, words are often shortened with poor grammar, sentences are not complete and there can be the heavy usage of emojis
to convey a thought or idea, such as a smiley face, etc. Typically, email correspondence uses full sentences, proper grammar
and can be considered more formal. As such, email correspondence could be considered more the replacement of the formal letter and texting is more the replacement for the telephone call.
However, while perfectly fine for informal communications between friends and family members about personal matters, texting between attorneys and their clients on client matters may be more problematic. Texting clients may bring a number of potential ethical and professional liability issues. While attorneys are under pressure from clients to respond quickly to client requests and inquiries, attorneys need to resist the temptation to communicate via text and instead use email correspondence to stay in compliance with their ethical duties and document retention and destruction requirements to both their clients and respective jurisdictions.
Brevity and Informality Are Not Always Appropriate in Legal Matters
As most attorneys know, legal and professional matters often involve nuances and exceptions that require full explanations to adequately convey thoughts, strategies, legal positions and/or conclusions. Texting does not lend itself well to those concepts. To the contrary, texting can contribute to informality and incomplete explanations causing attorneys to let their guard down and forget that every communication to a client may be important to defend that attorney in a subsequent legal malpractice action.
In addition, partial sentences, poor grammar, emojis, other shorthand techniques common to texting also do not look as professional to juries in the harsh light as an exhibit in a professional malpractice or disciplinary matter. Juries may infer that the attorney was not giving their full attention to a client matter when the attorney was just trying to respond quicker to their client than they could had they drafted a more formal email. Also, most attorneys have disclaimers for certain information in the body of their emails that are not very common in text communications.
Texts Can Complicate Document Retention and Destruction Policies
As attorneys know, there are statutory and ethical responsibilities to retain documents in client matters for a certain prescribed time frame depending on the respective jurisdiction. In addition, attorneys also generally want to have copies of all correspondence to and from a client to help defend the attorney in a subsequent legal malpractice or disciplinary matter. Thus, often the client file may be needed to save for periods from seven to ten years and sometimes even longer depending on the nature of the case and the respective statute of limitation in the attorney’s jurisdiction.
While emails are very hard to completely delete and much easier to archive for document retention purposes, texts are not. Many cellular phone carriers may delete texts in a far shorter time frame often no more than 30 -180 days after initial deletion by the client and/or attorney. This presents several ethical and practical issues for attorneys.
First, the attorney may not be able to comply completely with their ethical and statutory retention requirements if texts are missing from the rest of the client file. For example, this can be an ethical issue for an attorney for not complying completely with a seven-year retention policy. Also, in a subsequent legal malpractice matter, a client could argue that the file is not complete and even potentially open the attorney to an argument that had the texts been available, the client would better be able to prove his or her case. In
addition, the client might even be able make a spoliation of evidence argument that could result in a jury making a finding of a “worst case” interpretation concerning the contents of the missing texts.
Mixed Use of Personal and Work Devices
If texting is done using a personal phone of the attorney and emails are generally generated from the attorney’s work computer or laptop, the attorney may open his or herself to having the attorney’s personal phone and texts open to inspection and subpoena
during the discovery process in a disciplinary or legal malpractice matter. Generally, the attorney should not communicate with clients using personal phones and devices and keep them separate from all work communications whether texts or emails.
This can even be true if more than one attorney in a firm communicates internally with another attorney in the same firm concerning a client’s matter with their personal devices even though communications with the client are only done using only work-related devices. In discovery, if the client requests “all communications concerning the client’s matter,” some or all of those internal firm texts on the attorneys’ personal devices may be relevant to produce.
Texting is a great medium for quick communications and is here to stay for personal matters between friends and family. However, to protect attorneys from both ethical and malpractice issues, attorneys should draw a strict line in the sand for texts with clients. While time is often of the essence with communications with clients, attorneys need to get in the habit of using only email on their work devices and try to respond as quickly as possible. It may also be advisable for attorneys to formally state in their engagement agreement with clients that email and phone calls are the methods for all communications between the client and attorney. By doing so, the attorney can protect him or herself from ethical and disciplinary violations and potential legal malpractice claims.
This material is provided for informational purposes only and does not provide any coverage or guarantee loss prevention. The Hanover Insurance Company and its affiliates and subsidiaries (“The Hanover”) specifically disclaim any warranty or representation that acceptance of any recommendations contained herein will make any premises, or operation safe or in compliance with any law or regulation. By providing this information to you, The Hanover does not assume (and specifically disclaims) any duty, undertaking or responsibility to you. The decision to accept or implement any recommendation(s) or advice contained in this material must be made by you.
We trust that the above article was useful and thought-provoking; however, please note that it is intended as a general guide and opinion only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters. For more information on LPL coverage generally, contact USI Affinity today.