Texting can help facilitate scheduling, reminders and quick communications, while also giving clients a positive impression that you’re friendly, accessible, 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.
Tips to handle immediacy issues texting presents:
- Avoid incomplete answers and responses you may second-guess later. Consider responding with “This is a complex issue. After I have some time to review, I will call you to discuss.” or “Received. I will call you to discuss.”
- Consider stipulating at the inception of the engagement how text messaging may and may not be used.
- Explain that text is to be used for scheduling, confirming court times and other non-critical and non-substantive issues.
- Incorporate texting stipulations into your firm’s engagement letters so there is no question later.
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.
Tips to handle preservation issues texting presents:
- Research specific applications that can facilitate transfer of texts to a law firm’s computers.
- Ensure the applications are in place for all lawyers at your firm.
- Remember a firm can risk spoliation claims 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.
Tips to handle security issues texting presents:
- Use text platforms that have sufficient encryption to protect confidentiality.
- Ensure communications won’t be exposed to an unauthorized third party (either by the lawyer or client).
- Set phone notifications so they don’t appear on a phone lock screen and aren’t visible without a password being entered.
While the text message medium lends itself to informality, such usage can be perceived as unprofessional and may be subject to misinterpretation. A lawyer could even have their competence and professionalism questioned, with a text message blown up as an exhibit before a jury.
Tips to handle professionalism issues texting presents:
- Avoid abbreviations, emojis, jokes, sarcasm, slang and cursing.
- Always use 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 communicating with clients by text.
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 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.
Information provided by Lockton Affinity is not intended as legal advice.