Lawyers and Instant Messaging

Do Lawyers Text Message?

Or, atty txting, r u 4 it?

The following is a real (and redacted) conversation amongst several lawyers (including me) on the topic of text messaging and instant messaging. As you can see, the opinions fall primarily along two lines—those who embrace the technology and those who are skeptical of the technology. As I say in my bit below, I think there will be a generational change where lawyers a decade or two from now will use IM and txting the way we currently use e-mail and voicemail. In other words, without blinking an eye.

Without further ado:

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Lawyer 1

A reporter for LawyersUSA Weekly contacted me about whether lawyers are using instant or text messaging to communicate with clients about their legal matters. I was asked if I knew any lawyers who communicate this way to provide client service. If you are one of these lawyers and would like to be interviewed by LawyersUSA on this topic, please contact me and I will put you in touch with the reporter.

In general, if anyone has any thoughts on this topic that they would like to share with the group I’m sure we would all be interested. I have been concerned about the inability to preserve the IM and text communications so I have been advising lawyers against it, but I am sure there are certain situations where the instant nature of the communication is helpful for handling a client matter.

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Lawyer 2

I did this only once when a client came in for an initial consult for a domestic abuse hearing. She decided to go to the hearing alone in the hopes she could settle it. We agreed she’d text me if she needed me. She did send a text at the end to let me know that things had been resolved and to thank me for being available. I think it is fine in those situations, but wouldn’t do much more than that or for scheduling purposes or meeting a client at court.

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Lawyer 3

There are legal ethics experts on this listserve (or, at a minimum, there’s [redacted]) – and I am not such an expert. I do have some survival instincts, however. Traci is dead on. There should be NO communications of any substance left to text messaging. Nothing that affects the existence of a lawyer-client relationship, nothing coming anywhere near legal advice. Nothing having to do with the scheduling of or attendance at important events, like hearings. “I’ll be five minutes late for our meeting” and similar last minute logistical communications should be it.

[AND]

. . . and in case anybody misunderstood my inartful opening comment below, I did not mean that [redacted] represents any kind of “minimum” as an expert in legal ethics. I meant that, as a minimum, we’ve got one legal ethics expert: [redacted].

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Lawyer 4

No.

N.O.

Never.

Not in a million years.

No.

Thanks for asking.

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Patrick Oden

I find the few comments so far interesting. Not that I disagree with them, as I act in similar ways. However, if preservation of information is the concern, would lawyers who refuse to use instant messaging also not talk on the phone with clients or e-mail clients?

I have not text messaged a client, except in one case where a client apparently felt a need to send me text messages when I was unavailable to take a call to let me know that I would shortly receive a voicemail. I would respond with an OK.

But as far as text messaging goes, my smartphone saves all incoming and outgoing text messages and backs them up when it connects either wirelessly or by wire to my computer, and in turn are all backed up along with my regular data preservation practices. I don’t see any more risk of loss in text messaging (which is a sort of short-form e-mail) with the right equipment than with any other e-mail service.

Likewise, instant messaging, with the proper software, can be preserved just as any e-mail can.

Unless we’re recording each and every phone conversation, there’s actually more likelihood of a trail in text/IM than in a telephone conversation. But, as I alluded, you have to be using the proper equipment/programs.

I wouldn’t rely on text messaging or instant messaging, but I will venture to say that the next generation of lawyers and clients, or perhaps two at the most, will do so.

I know lawyers who still won’t communicate with clients by e-mail. Likewise, instant and SMS messaging are part of one of those technological areas that will simply require a generational shift in custom and comfort, I suspect. Ten or twenty years from now, clients will probably look back on the current attitudes and be shocked by our Ludditism. Ludditeness? Ludditivity? Wariness of technological advancement.

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Lawyer 5

Sometimes. For example, I had a client who was deaf. IM was a much easier way to communicate with her. And since IM programs will automatically save a record of what was said/typed, I actually had a much easier time assembline her affidavit, since I had an exact record of our conversations.

I do use SMS occasionally, mostly for coordinating meetings at the courthouse, or something similar. I don’t see any greater problem with text messages than with email or phone calls, except that you cannot get much done in 160 characters, so its usefulness is limited.

[redacted]

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Lawyer 6

I agree that text messaging is not a whole lot different than other written communications. But I think the issue relates more to the client record or ‘file’ than anything else, and multiple means of communicating with a client complicates what exactly makes up that “client file.” If, for instance, the client fires you or you withdraw, and he or she wants the ‘file’ transferred to another attorney, how well situated are you to transfer the client’s records if those records are in e-mail, SMS, snail mail, or even in a social media inbox (not to say that’s a good idea)?

It gets even more complicated if you are not a solo but work with multiple attorneys on a matter – how well can the other attorneys keep up with and be apprised of communications with the client (or others, actually) if those communications are ‘stored’ on multiple devices and in multiple formats? In law school, we learned to document all communications with the client, but in my day that was usually a physical letter or a written note that was two-hole punched and placed in the file. Nowadays, it’s not so easy, and I’m also not so sure what even constitutes the client “file” other than it, by opinion of the MPRB, includes all “correspondence.”

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Lawyer 3 again

OK, I guess my response was extreme. On reflection, I guess it is little different from voice communication. I don’t agree that it’s similar to a letter or an e-mail because records are not easily accessed, but that doesn’t mean it can’t be used in the same way a brief phone call is used.

As a 52 year old attorney in a 19th Century profession, I just don’t trust it for anything but getting ahold of my son and daughter – but my distrust is not based in anything but instinct. I haven’t read [redacted]‘s article on the subject and would defer to it – and I would reserve any important communication to letters.

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Lawyer 7

I decided to get in on this thread to see if I could stop this burning sensation in my ears . . .

I tend to agree with Patrick’s comment that not every communication a lawyer has will be preserved and in that sense, text is no different than a phone conversation. As [redacted] noted, however, it may be difficult to communicate detailed, important information in a very short message.

My teenagers, of course, are frequent texters, and I find I am starting to prefer it for short messages, rather than have to log into voicemail, go through the tedious menu, just to hear “I signed the letter and mailed it to you today” or “I’m running 10 minutes late.” Just this week I sent a text to a client to confirm I had completed a task; I knew the client was in a meeting and I was leaving for the day.

[redacted]‘s point about what constitutes the client file is an interesting one. I think we can analogize to other communications where records may not be preserved. For example, many times lawyers talk with clients and don’t take any notes. The fact that there are notes for some calls doesn’t create an obligation to make notes for all calls. Some lawyers preserve all client e-mails, others delete e-mail that has no substantive information. Same thing. What a lawyer can’t do is cull through the records at the time the client or someone else requests them and selectively delete or remove information. It is worth considering [redacted]‘s point that using multiple forms of communication with clients may create headaches later on. So if you have business clients who are also friends on facebook, and they e-mail you through facebook, you may want to copy and paste the message into real e-mail and respond that way.

I have not yet seen any disciplinary or malpractice cases focused on the content of a text message or the inability to produce a record of one, but I’m sure I will

eventually.

I think someone else may have said this already, but it would be amusing to fly backward in time to a 19th century bar association meeting and see whether lawyers were horrified that instead of meeting with a client or writing them a letter, a lawyer might communicate with a client by telephone.

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Lawyer 8

I wonder if attorneys a hundred (?) years ago were having the same thoughts and hesitance to use telephones when they first came out? Confidentiality is hard to assure. We don’t know that phone messages on answering machines are inaccessible to anyone else. We don’t know that letters lying around aren’t read by someone else.

It is very simple to print emails, instant messaging chats and even photo copy text messages. I haven’t used instant messaging with clients but it sounds like a great idea. Then, the words are on my screen, can be saved and printed, can be reviewed again later. No worry about phone cutting out or misunderstood words. It might be better for the client, too, to re-read it and make sure they understood the conversation.

As for text messaging, sometimes people can send a quick TM when they cannot call. The one important TM of substance I sent this year was “NO!! DO NOT CALL THE JUDGE” and needed to get that message to the client ASAP. :)

These are different tools but the same precautions and common sense apply. Just my thoughts.

k thx bai

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Lawyer 3 again

I have been communicating with you this entire time from the Nineteenth Century, through a wormhole in the time-space continuum. I am highly suspicious of the telephone, and, to make matters worse, my powdered wig keeps interfering with the earpiece.

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Lawyer 9

I joined this conversation late, and this may not be quite in line with what has been discussed.

However, for what it is worth, my voicemails are forwarded to my Outlook. In this way I have one location for all of my messages, and I can save important messages to a client file—especially if I believe this may help cover my backside.

What really works well is when I am working at home and using remote access. We believe it is an excellent marketing tool to have a human contact for calls during office hours. My secretary can switch the caller to voicemail and I will see it in moments and call back immediately—clients are impressed. If my secretary thinks the call is important enough she will call or e-mail me to make sure I am available.

The long and short of it is that I can work at home with minimal interruption (and my secretary can truthfully say I am out of the office), yet important calls can be returned immediately. Also, I am not jumping back and forth from my Outlook to telephone to keep on top of my messages.

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Lawyer 10

Text messages can be forwarded to your email, including outlook, for preservation. The younger generation, my adult children included, do not listen to or leave voice mails—the younger generation doesn’t do that, my wife was told; they reply to caller ID numbers so don’t block; they reply to emails sporadically—I am not sure they listen to them and in any event they store thousands on their hotmail, gmail and yahoo accounts so finding yours is by chance and not by design; they reply virtually instantly to text messages. Their phone is always with them, usually on vibrator mode, and many times they don’t want to be bothered with something as large, cumbersome and bothersome as a smart phones.

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Lawyer 5 again

As with everything, preservation is a problem that can be solved. I just use Google Voice to communicate with clients–both phone calls and SMS. It makes it easy to preserve phone calls, voicemails, and SMS messages.

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Lawyer 6 again

My thoughts were a bit more nuanced and related not so much to preservation but to reproduction, though the ease of reproduction depends a great deal on how/where you have preserved your client data. As attorneys use more and more means to communicate or correspond, it creates more and more sources to access and to reproduce when required. Not in itself a bad thing, but something to consider when using different electronic communications. If you withdraw and a successor attorney wants you to produce the client’s entire file (which would include electronic correspondence), how well situated are you to do that? What sources must you consider for retrieving the information? It used to be you went to your paper file, arranged to have it copied, and then forwarded the copies to the next attorney.

Now, with SMS, e-mail, Facebook, or even Wave, you have multiple sources to consider (and you may even have sources that differentiate between personal and professional accounts). Add to that an attorney in your own firm who must take over a file if you become sick, move to a different firm, or are no longer available, and you may have an issue in bringing the new attorney up to speed if correspondence is scattered across multiple platforms.

The most extreme version of this is in the student clinic setting, where law students are learning the ropes of being an attorney and, at the same time, frequently taking over cases midstream after a former student has moved on. If the former student communicated with the client by SMS, e-mail, mail or other methods, have those communications been preserved in such as way as the new student attorney has access to them? What systems were in place to make sure that occurred? Those are the important questions in my mind, whether in a student clinic setting or your own practice setting.

I’m not wary of communicating electronically and in various media, just wary of what happens when you are required to find and reproduce those communications, either as a result of a request for the file or, worse, as a result of a complaint against you that you did not handle a matter effectively.

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Lawyer 11

The reason I wouldn’t want to text or im with a client is more to do with the fact they will expect immediate responses whether or not I’m able to respond immediately. I don’t want them to have access to my cell phone, nor know when I’m available on IM. That seems to cross the line to me.

Tags: instant messaging, lawyers, legal ethics, text messaging

This entry was posted on Saturday, November 14th, 2009 at 6:45 pm and is filed under technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a comment below, or trackback from your own site.