Texting has become a critical communication tool in our society and between attorneys and clients. With innovation comes a potential downside—clients want instant responses and around the clock availability.
Attorneys who text with their clients must be cognizant of the substantial risks that may arise from these communications and would do well to avoid a scenario as illustrated below.
Attorney Hap Less is sued by a disgruntled client for legal malpractice. As part of its investigation, Hap’s professional liability carrier requests a copy of the client file. After Hap provides an unusually thin file, the claims adjuster asks if there are any other records. Hap replies, “Just text messages—nothing important.”
When his carrier assures Hap that texts are indeed important, he admits he lost his phone at the courthouse and cannot get his prior texts. His cell phone provider advised that the limited retention period for text retrieval has expired.
In short, there is no way to get these text messages, unless the client has copies. And, Hap has some vague memories of a text exchange with the client that could be construed as “a bit off-color.” After discussion, Hap and the carrier opt to settle quickly to avoid issues that may arise if the texts come to light. Hap pays his significant deductible and faces the prospect of increased insurance premiums due to the claim.
The above scenario, although fictitious, is illustrative of some of the significant issues that can arise when lawyers opt to give their clients their cell phone numbers.
Top Five Considerations
Here’s a top five list of things you should consider when texting with clients.
- Archiving. Attorneys have an ethical duty to preserve client files during representation and subsequent file retention period. Text messages, like all paper and electronic communications, must be preserved and retained. As noted in Hap’s case, it is not always possible to recreate text messages after a legal malpractice claim is made. While taking a screen shot of a client text exchange and sending to the file is an option, this can be time consuming and awkward. Fortunately, available software can help you easily save your texts as part of your regular procedures. If you are not preserving messages, you could face a spoliation claim for destruction of the file and/or a bar grievance for failing to retain client materials.
- Competence. Even the English majors among us (including yours truly) tend to use less formal language when texting. These shortcuts can include abbreviated language, emoticons, gifs and memes. While such creative lingo can quicken reply time and even add a touch of levity, attorneys should think twice. A lawyer’s competence and professionalism may be questioned if slang, swearing, or sarcasm is used. Review your last text message to a client—is it professional in tone? Would you be comfortable having it blown up as an exhibit for a jury? Or perhaps even more telling, would you want your mother to read it?
- Managing Expectations. When a client texts, he or she expects a quick reply. If no immediate answer is received, the client may feel disgruntled and ignored. However, some clients send multiple, compound questions requiring research and reflection. Do not give into the temptation to fire off an incomplete or immediate reply on a substantive issue. A response along the lines of, “Let me research your questions and call you back” or even “In court—will call you later” tells the client that you got the message and will be answering in due course. To avoid this scenario altogether, consider telling the client that you will only text on non-substantive matters, such as scheduling issues. Some firms have incorporated a provision in their engagement letters that texting will not be used for substantive issues.
- Attorney-Client Privilege. In Hap’s case, imagine an unscrupulous opposing party found the phone, with no password protection, at the courthouse and read all of Hap’s texts. Not only would the attorney-client privilege arguably be waived, Hap’s opponent may also gain insight into case strategy. Minimally, attorneys must ensure the phone has adequate encryption and security. Further, keep in mind that if the client’s phone is not properly secured, text exchanges may still be susceptible to unauthorized disclosure.
- Billing. How are you accounting for your time when texting clients? Are you billing in minimal increments (e.g., .1 hour) for each and every text? If yes, you could easily bill a client an hour for a simple text exchange involving “yes,” “no” and “ok” responses. What would a jury (or the Bar) think about these billing practices? A better option would be to aggregate the total time spent in a text exchange and bill the client accordingly. On the other hand, don’t forget to bill altogether. Your time is valuable, no matter what the communication method.
Make every effort to protect yourself so that in the event a legal malpractice claim is made, you are better situated than Hap and his wayward cell phone.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Ellen McCarthy (CPCU, RPLU) is a vice president, client operations and risk management leader for the lawyer’s professional liability program with Swiss Re Corporate Solutions. She previously served as a claims expert adjudicating complex legal malpractice and insurance agent E&O claims across the U.S., and as an underwriter for the LPL program. She is a licensed Maryland attorney and former associate at an insurance defense firm in suburban Washington, D.C.
This article contains the personal views, thoughts, and opinions of the author. It is not endorsed by Swiss Re nor does it constitute any official communication of Swiss Re.