Like most people today, lawyers are rarely more than an arm’s reach from their cell phone. You may have even made a habit of giving your clients your cell phone number and allowing them to call or text you at any time.
Texting clients can help facilitate scheduling, reminders and quick communications, while also giving clients a positive impression that a lawyer is friendly and accessible, and committed to providing the best legal representation.
However, text communications may pose a substantial exposure for attorneys. If you text with your clients, it is important to consider these four factors to manage your risk:
According to communication studies, 95% of texts are read within 3 minutes, while the average response time is only 90 seconds. Clients, like all texters, often come to expect an immediate response. However, a fast response on your part will not always be adequate or appropriate:
- An appropriate response may require investigation and research, making the immediate texting medium a less than suitable method of communication.
- A compound question may be impossible to adequately address in the form of a text message response.
It’s best to avoid incomplete answers and responses you may second-guess later. Instead, consider one of these responses:
- “This is a complex issue. After I have some time to review, I will call you to discuss.”
- “Received. I will call you to discuss.”
These responses let the client know you got their message and will respond appropriately.
Even better, consider stipulating at the inception of the engagement how text messaging may and may not be used. You may explain that text is to be used for scheduling, confirming court times and other non-critical and non-substantive issues. This can even be incorporated into the firm’s engagement letters so that there is no question later. For lawyers, this can also help reduce the expectation of clients that you will provide legal advice immediately via text.
Like any other legal correspondence, electronic communications through text need to be memorialized. Text messages must be produced if a client requests a copy of their file or if a legal malpractice claim is made. Phone carriers typically limit the retention period for text message content, so it is imperative that the attorney have a procedure in place to keep a record of all text messages with clients.
While it’s possible to take screen captures, specific applications now exist that can facilitate transfer of texts to a law firm’s computers. Remember that a firm could risk a spoliation claim from a disgruntled client for destroying evidence if there is not a method in place to preserve these text exchanges.
It is a lawyer’s duty to ensure the confidentiality of client information and protect the attorney-client privilege. This extends to text messaging technologies. Ensure that:
- Text platforms used by the firm have sufficient encryption to protect confidentiality.
- Communications won’t be exposed to an unauthorized third party (either by the lawyer or client).
- Phone notifications don’t appear on a phone lock screen and aren’t visible without a password first being entered.
While the text message medium lends itself to informality, lawyers must be cautious. It is often best to avoid:
Such usage could be perceived as unprofessional and may be subject to misinterpretation. A lawyer could even have their competence and professionalism questioned, with a subject text message blown up as an exhibit before a jury. A better course is to ensure a professional tone in all business communications with clients.
While texting has become a mainstay of communications in our society, it is important for lawyers to manage the risk of texting clients. Set clear expectations about the use of text communication for non-substantive issues. Ensure a method is in place to preserve any text exchanges and take the necessary steps to safeguard your communications, while remaining professional at all times. These tips can ensure that you provide the best representation to clients, while minimizing the risk of a misguided text message one day being used against you in a malpractice claim.
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