You see them everywhere: heads bowed, thumbs flying, oblivious to the things they’re about to walk into. They’re people texting friends and family on their cell phones, the communication method du jour, favored by the under-30 set (although the rest of us are not immune).
Over the last 30 years, we’ve gone from the formality of letters sent by post, to the immediacy of faxes, to the instancy of e-mail. Each new form of communication has been both a blessing and a curse to busy lawyers. Which makes me wonder whether texting would be a good way of communicating with clients.
Ethics authorities generally approve of electronic communications by lawyers. Although lawyers should take reasonable precautions to protect the confidentiality of their communications, they are not expected to make calls only from land lines or to encrypt e-mails.
On the other hand, few lawyers would leave a voicemail message for a client containing confidential information, especially if the lawyer had reason to believe that someone besides the client could get access to the voicemail.
Similarly, lawyers who communicate with clients through e-mail while the client is at work should probably advise their clients that the employer may have the ability and the right to review their employees’ e-mail accounts, which could result in a client’s loss of confidentiality and attorney-client privilege.
Texting through a cell phone shares some of the characteristics of other types of modern communications. Like voicemail, it is useful for leaving brief messages, confirming meeting appointments or cancellations, or letting someone know that you’re unavailable for a while. Like e-mail, it allows the parties to keep track of the thread of their conversation, preventing some misunderstandings and memorializing what was said and when.
But as a form of communication between lawyers and clients, texting leaves a lot to be desired.
IMHO, texting, by it’s very nature, is an abbreviated form of communication. FWIW, shortcuts r the norm becuz it’s hard 2 type real sentences on a phone keypad. Besides an inchoate loss of professionalism, it seems unlikely that the answer to most clients’ legal questions can be reduced to yes, no, or IDK.
A lawyer’s obligation under the Rules of Professional Conduct is not just to answer a client’s question, but to do so in a way that communicates to the client all the information the client needs to make competent decisions about the representation. It may also work against the client’s interests to create an expectation that legal questions are so simple that they can be answered in a brief text message.
Another concern about texting is that there is no easy way to preserve the content of a text thread, absent some clever software that allows the thread to be forwarded to an e-mail address or a website where it can be properly saved as an electronic file. Phone conversations, it is true, are not preserved unless they are recorded, which is prohibited in some jurisdictions and rarely relied on even where the practice would be legal. But a phone conversation allows a lawyer to gauge the depth of the client’s understanding, giving the lawyer additional clues regarding whether the lawyer should make detailed notes of the conversation and follow it up with a letter or e-mail.
People often complain that the tone of e-mail messages are misunderstood because of the lack of aural and visual cues. Texting could only create a greater risk of misunderstanding.
On the other hand, as a practical matter some clients insist on communicating in the manner that is most convenient for them, despite the lawyer’s entreaties that the clients not leave ten-minute voicemail messages, send five different one-line e-mail requests in a single day, or communicate important information by text message.
So lawyers have to balance client-friendly service against the need to document some conversations. It’s unlikely that there will be an ethical ban on texting clients but it is also likely that some future lawyers will receive ethics complaints alleging that the lawyer failed to timely respond to a client’s text messages or that the client misinterpreted the lawyer’s brief text response to a question. Like every other form of communication, texting has pros and cons that may help or hinder a lawyer’s practice.