To Text or Not to Text: Communicating with Clients in a Cyber World

As lawyers, communicating with our clients is a vital part of our practice. Not only are our communications with clients a critical part of simply being able to handle matters on their behalf but keeping clients informed on active or ongoing matters is also an ethical obligation. The Rules of Professional Conduct require that we:

• Promptly inform a client of any decision or circumstance for which the client’s informed consent is required;
• Reasonably consult with the clients about the means by which the client’s objectives are to be accomplished;
• Keep our client reasonably informed about the status of a matter;
• Consult with our client about any relevant limitation on our conduct if we know that our client expects assistance not permitted by the Rules of Professional Conduct or other law; and
• Explain a matter to the extent reasonably necessary to permit our client to make informed decisions regarding the representation.¹ 

However, the Rules also require that we maintain confidentiality of information relating to our representation of a client unless the client gives informed consent or the disclosure is otherwise permitted.² 

The challenge we face as lawyers is determining what is the best way to communicate with our clients. In an electronic world, it is almost impossible not to utilize electronic methods of communication.³ Good or bad, most of us are not far from at least one electronic device most hours of the day – so too are our clients.

Benefits of Texting

There are advantages to texting as a method of communication. Text communications allow for quick and easy communication with our clients. For instance, texts allow us to update our clients in the event of a last-minute schedule change or if you are running behind to meet them. In most instances, text communications also allow you to be reached immediately should an emergency arise with a client or their business. Also, for some clients depending on their occupation or industry, other modes of communication may not be a viable option. For example, it may difficult for someone in the construction industry to take a telephone call from a busy worksite.

Risks of Texting

Along with the benefits of texting comes risk. In fact, the same things that we may consider benefits of texting could also be considered a risk. For instance, how do we define boundaries with our clients and manage their expectations? Do we really want to be texting with clients at all hours of the night and day? Probably not. Texts may also be an inefficient method to discuss substantive matters. Not only does the expectation of a quick response time impede your ability to adequately consider a question posed by a client, but it may also cause you to oversimplify your response when the client would be better served following your thorough review and analysis of the issue. Texting with clients also raises security and confidentiality concerns. Do you know who has access to your client’s phone or electronic device? Text messages are often viewed as a more informal method of communication. Does your client understand that such communications should be considered part of your attorney-client relationship and hold the communications as such?

Utilizing Texting in Your Practice

• In determining how to communicate with clients, know what works for you and your clients. In order to provide the best protection to both you and your clients, consider:
  Limiting use of texts to brief, non-substantive subjects such as arranging for appointments, meetings or deadlines. If a client asks a substantive question via text, consider suggesting that you discuss the issue via telephone conference to ensure that the information provided is received in an appropriate context and that it is understood.
• Keep a record of all texts between you and your client. Just as with any other written communication relating to your representation of a client, it is important to document your file. Most text platforms allow you to send your text chain to an email so that you can either save it to an electronic or paper file relating to that client.
• Secure your electronic device and advise your client to do so as well. In order to protect communications between you and your client under the attorney-client privilege, you must ensure that the communications are not provided to anyone other than you and your client. This may include making sure the screen of your electronic device is locked so that messages cannot be viewed until you access the device.

Maintaining security of your communications is one of the most, if not the most important factor in considering whether and what to text with a client. Security of text messages means not only ensuring that the electronic devices used by you and your client are physically secure, but also that the messages you exchange are secure. Many texting platforms are not secure. End-to-end encryption such as used by text platforms WhatsApp, iMessage and Signal is considered the best protection by cybersecurity experts, however, both parties must be using the same platform to maximize the benefits of the security protection.

However, even use of end-to-end encryption is under attack. In June 2019, the National Security Council met to consider whether to ask Congress to outlaw end-to-end encryption. The debate is not a new one and pits tech firms and other privacy advocates against law enforcement agencies seeking backdoors into communication software where strong encryption hinders criminal investigations. The debate is far from over but highlights many concerns we, as lawyers, may have regarding the confidentiality of communications with our clients.

Texting with clients can be an easy and efficient way to keep in touch, however, remember to stay mindful of your client’s expectations as well as the risks associated with how we choose to communicate with them.

 

This article was prepared by Holly M. Whalen, Esq.  We trust that the above article was useful and thought provoking; however, please note that it is intended a general guide 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 and Cyber Liability insurance, contact Greg Cooke at USI Affinity today.

 

1) Model Rules of Professional Conduct, Rule 1.4.

2) Model Rules of Professional Conduct, Rule 1.6.

3) In fact, the Comment to Model Rules of Professional Conduct, Rule 1.1 provides that lawyers “should we keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology[.]”