To Text or Not To Text: Do Lawyers Really Have a Choice?

Attorneys wonder if texting is consistent with rules on lawyer compliant communication. Clients increasingly desire to communicate with their lawyers in ways that are familiar and convenient for the clients. For many clients, communication via smartphone is the most familiar and convenient form of interaction. The clients are not, however, using the call or e-mail functions on their phones – the days of Blackberry are gone. Instead, clients are texting and using apps like iMessage, WhatsApp, or WeChat to send written or voice messages or to receive even voluminous documents.

Make People Aware of Appropriate Content

Clients’ preferences are always an important consideration in the legal profession. When, however, lawyers agree to communicate by way of messaging platforms or old-fashioned text messages, several other equally important considerations determine whether these messages qualify as lawyer compliant communication. Lawyers will want to work with clients to establish what content is appropriate for these forms of communication. For example, a complex strategy discussion about a merger or the exchange of potentially market-moving non-public information in a capital markets deal should be avoided.  These concerns about the substance – the what – of messages will require good judgment from lawyers and good information to clients about how to protect and preserve confidentiality. Lawyers may be able to address these substantive concerns through information and training.

Text Messaging is Not “Just Like” Email

Communicating with clients via messaging platforms also raises a number of technical concerns that influence lawyers’ ability to comply with certain regulations and best practices – the how. These additional practice and compliance concerns are heightened in large law firms with multiple lawyers to coordinate and monitor to enforce lawyer compliant communication rules. These technical concerns include digital security and data ownership and the needs for documentation and confirmation.

These concerns may sound familiar to lawyers who experienced the transition from paper to email, but the proliferation of messaging platforms and devices has heightened the complexity and the risks. In the “old days,” proprietary email servers allowed firms to maintain sufficient control to use email confidently. Today, messages may pass through third-party platforms on devices that are often the lawyers’ personal property.

Four Key Questions about Compliant Texting

When allowing communication with clients via SMS or instant messaging platforms, firms must answer “yes” to the following questions to ensure lawyer compliant communication:

• Is this communication secure? Lawyers are required to maintain client confidentiality.  Text messages and messaging platforms enjoy differing levels of privacy protection and encryption.
• Can we accurately document all communications exchanged via text message or messaging platforms? Good practice demands that lawyers keep complete records of their communications with clients. If a large firm relies on individual lawyers to use manual methods to transfer text messages to client files, the firm may not be able to ensure the completeness and accuracy of these records.
• Do we own the data? Firms may need access to data in case of investigations or disputes involving clients. Text messages stored on third-party systems or on the employee’s mobile device and will literally walk out the door when a lawyer leaves the firm.
• Are we able to confirm the client’s receipt of the communication? Lawyers are able to act only on valid instructions from their clients. Trouble arises when lawyers are not able to confirm that clients received all necessary information about the decision. Erased or supposedly errant text messages would complicate the firm’s ability to prove client knowledge and consent.

LeapXpert Makes Lawyer Compliant Communication Easier

Relying on the diligence of individual lawyers and the good faith of clients is not ideal. Instead, law firms can rely on automated enterprise solutions, like LeapXpert. Those allow the firm to respond confidently “yes” to each of the above questions.

Constant demands from clients to communicate via messages mean that the transition away from calls and emails is already underway. Is your law firm ready?