For those who have followed my writings and presentations over the years, I have spent some time addressing the ethical considerations involving the use of cloud computing in law practice. In fact, I first presented on this topic almost 10 years ago, and have watched as jurisdictions have addressed the issue with their respective bar associations over time. The use of technology in legal practice has grown by leaps and bounds since those days (and, quite frankly, continues to do so), as evidenced by the proliferation of mobile devices and their supporting platforms. In fact, you would be hard pressed today to find any attorney that does not use their smartphone in some manner in their law practice. At the very least, attorneys commonly use their cellphones to make and receive calls from colleagues as well as clients. Unfortunately, when it comes to the use of short message service (SMS) text messaging on mobile devices, therein lies the rub.
The use of email as become commonplace between attorneys and clients, providing an efficient (and mostly ethical) mechanism for communication. By “mostly,” I refer to communications that do not require a heightened standard of security — most jurisdictions have ethical opinions addressing email communications that require attorneys to consider more robust means of client communication (such as encryption) where highly sensitive information needs to be communicated. That said, I have witnessed more and more attorneys engaging in the use of text messaging to communicate with clients about matters within the scope of their representation. Doing so may be convenient, but is fraught with perils that should be considered by any attorney thinking about using this method of communication with clients.
First, some foundation is in order. The American Bar Association Model Rules of Professional Conduct Rule 1.1 outlines the duty of “competence” that attorneys must afford their clients, stating that “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In Comment 8 to that model rule, however, such competence now includes technological competence — “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” Simply put, providing competent representation now requires that a lawyer not keep their technological head in the sand.
With this in mind, text messaging presents a a number of different technical considerations that differ from standard email. One of the most important is that email maintains a record of the conversation as part of its architecture, generally allowing the individual user to customize the platform to file, archive, or otherwise delete such email (or entire threads/conversations). Text messages, on the other hand, are different — the mobile devices generally show the content and history of the most recent text messages, but these text message exchanges are not separately recorded by the cellular provider indefinitely for future reference. To do so, attorneys would need to manually transfer and backup the text messages from their mobile phones to their PC (for Mac) or otherwise have an enterprise solution in place that would automatically do so.
Further, text messages are brief (and immediate) modes of communication — one would be hard pressed to engage in a comprehensive legal discussion with a client via text messaging. Most lawyers may like to use this mechanism for simple exchanges (such as to inform clients about their whereabouts for a meeting), not as a tool for more complex legal discussions. This is more important than you think — what most attorneys don’t realize is that the notifications for such text messages normally come up on the screen of the mobile device when locked, creating a potential breach of attorney-client privilege. This feature can be disabled, but most don’t do so because it defeats the purpose of receiving immediate notifications for prompt response.
Before jumping on the text messaging bandwagon with your clients, here are a couple more points for your consideration:
When It Comes to Immediate Communication, Be Careful What You Wish For. For some attorneys, the upside of immediate communication within the confines of short messages outweighs the risks. That said, using such an instant form of communication can create an unreasonable expectation of client communication that may not be feasible in all circumstances. Attorneys who opt to use text messaging with clients arguably have an ethical obligation to outline parameters regarding the use of text messages so as to establish reasonable expectations involving the technology so as to not run afoul of their obligations under Model Rule 1.4 as implemented in their jurisdiction.
If You Choose to Text, Be As Secure As Possible. If you are inclined to use some form of text messaging in your practice, consider third-party applications that incorporate end-to-end encryption such as WhatsApp and Signal (and for Apple iPhone users, consider the iMessage native to iOS). That said, the confidentiality of such text messages will be compromised if the client is not also using the same application. Bottom line: Security is not a given when it comes to text messaging, so be careful.
The point here is not that text messaging should be avoided in the entirety, but rather, that it should not be taken for granted. The use of such technology should be weighed very carefully against the potential risks in using text messaging before engaging in its use in your practice. So, “to thine own self be true” and take the pros and cons of text messaging seriously when it comes to your law practice — your clients will thank you for it.
Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.
To Text, Or Not To Text, Clients: An Ethical Question For A Technological Time curated from Above the Law
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