Texting: Boon to Client Communication or Necessary Evil?

Texting: Boon to Client Communication or Necessary Evil?

Model Rule 1.4 requires lawyers to consult with our clients and to keep clients reasonably informed about their mater. Texting is fast, easy, and often the most convenient – or sometimes the only – way to communicate with many clients. Texting has become as routine as email, perhaps more so, depending on your area of practices. As with anything that provides benefits, though, using texts to communicate with clients also carries risks. In short, texting cannot be avoided, and should be used appropriately with an eye toward minimizing risk.

Perhaps first and foremost among the risks in texting with clients is the lack of care in drafting and lack of specificity in language. Texts are intended to be rapid, condensed communication – such a medium does not lend itself to the careful analysis and thorough explanation that is often required to fully explain the legal and factual footing in a client’s mater. Colloquial phrases that seemed completely understandable at the time will not be so comprehensible when scrutinized several years later. Any vagueness or ambiguity will be held against the lawyer. Allowing texting to replace in-person or telephonic meetings heightens the risk for both a legal malpractice claim and for a disciplinary claim.

Other risks related to texting include the difficulty in locating, maintaining, and managing the communications, which might be needed to provide services to the client during the period of the engagement, or to defend a later disciplinary or civil claim. This risk can be mitigated by use of case management systems that integrate SMS/text messaging into the client communications function.Keep in mind that text messages are not excluded from the scope of documents considered to be the client file. Thus, if the client requests a copy of their file, text messages will need to be included in the transmital.How will you bill for text messages? If using .1 for each text, lawyers can rapidly pile up time spent exchanging simple single word texts with the client. Consider whether this complies with Model Rule 1.5’s requirement of a “reasonable fee.” Texting is suitable for scheduling meetings, or when rapid communication is required about a discrete topic. Ideally, appropriate text communications would be discussed in the engagement agreement, so that clients are prepared for the types of communications that are required to appropriately manage an engagement.

For more information on the risks and benefits of texting with clients, see 5 Tips for Using Text Messaging for Client Communications (ABA Journal, June 2018); the Florida Bar’s Best Practices for Professional Electronic Communication, and the New Hampshire Bar Association’s five-part series on Lawyers & Texting.

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