Many lawyers are rarely more than arm’s length from their cell phone. Taking a call on the go or sending out a quick email or text are the lifeblood of modern business communications. Yet email and text communications with clients may pose a substantial exposure. These tips for texting and emailing clients can help you manage your risk.
Tips for Texting Legal Clients
Texting offers an immediacy not possible with other means of communication. According to studies, 95% of texts are read within 3 minutes, with responses often sent within 90 seconds. Clients are like all texters in that they often come to expect a quick reply. But there are other factors to consider to reduce your risk of exposure.
1. Avoid Incomplete Answers Via Text
It’s best to avoid quick but incomplete answers to client questions that you may second-guess later. In some cases research is needed. Or a compound question may be impossible to address efficiently in a text. In these cases, lawyers may opt for a general reply, such as “This is a complex issue. After I review, I’ll call you to discuss.” or, “Received. I will call you to discuss.”
2. Preserve a Record of Text Messages
Like other legal correspondence, lawyers must keep a record of text message communications. Texts must be produced if a client requests a copy of their file or if a legal malpractice claim is made. Messages may be lost by relying on devices and phone companies, so lawyers use an app or tool for preservation.
3. Ensure Security and Confidentiality of Texts
A lawyer’s duty to confidentiality and attorney-client privilege extends to text messaging technologies. Lawyers should turn on data encryption features, hide phone notifications on lock screens, set a device password and make efforts to ensure the communications won’t be exposed to an unauthorized third party either by the lawyer or the client.
4. Maintain Professionalism While Texting Clients
While using an informal technology like text messaging, it’s important to continue to maintain professionalism. Abbreviations, emojis, jokes, slang, sarcasm and profanity could be deemed unprofessional and may lead to questions of competency. Lawyers can minimize risk by stipulating guidelines for texting at the inception of each client engagement.
Tips for Emailing Legal Clients
Email has become a primary means of communications for many lawyers and law firms. Emails can be sent and read from anywhere and it’s a technology open to everyone. However, like text messages, emails present substantial risk for lawyers and firms that must be addressed with the proper precautions.
1. Keep Email Messages Professional
Avoid misunderstandings by making sure to draft your emails in a professional manner. Attempts at humor, all-caps writing, exclamation points, abbreviations and emojis may lead to confusion and misinterpretation for clients, particularly in the context of a serious legal matter or investigation, so it’s best to avoid them.
2. Double-Check the Message Recipients
Sending a client email with confidential information to the wrong recipient could have disastrous consequences. Create a system to minimize the chance of it happening. Finalize the message first before filling in the recipient fields. Choose and then double-check the recipients for each message before clicking send.
3. Safeguard the Information in Attachments
Attachments are likely to contain sensitive information, so it is equally important to ensure the right attachment is sent to the right recipients. In one notable incident in 2009, a U.S. attorney sent the wrong attachment with a media briefing revealing the identity of 24 confidential sources. Instead, carefully name and sort computer files and double-check before hitting “Send.”
4. Consider Reply-All, Forwarded and Blind-Copied Messages
Reply-all, forwarded and Bcc’d messages present another risk. Reply-all could lead to a disclosure of confidential information. The attorney-client relationship could be jeopardized if a client forwards one of your emails. The New York Bar Association has even issued an opinion counseling attorneys not to Bcc clients on emails with opposing counsel, due to the risk a reply all could reveal Bcc recipients to other message recipients. (New York State Bar Association, Ethics Opinion 1076, 2015)
Texting and emailing clients can help facilitate scheduling, offer reminders and make for quick communications. Lawyers also instill confidence in clients that they are friendly, accessible and committed to a strong legal representation. But new technologies are not without risk for lawyers and law firms. Ensure that your text and email communications are clear, professional, secure and managed in such a way that the risk of exposing sensitive information in minimized. With these guidelines in mind, you can help minimize your chance of a malpractice claim.