By: L. David Russell
March 24, 2020
Text messaging is one of the fastest and most convenient ways to communicate today. 82% of text messages are read within 5 minutes, yet consumers only open 1 in 4 emails they receive. In the 2019 State of Texting Report, 39% of businesses used some kind of texting to communicate with clients. With today’s COVID-19 pandemic forcing businesses and their personnel to work from home (and creating a potential strain on at-home WiFi and bandwidth), lawyers and their clients are using their cell phones to reach out to one another. This is especially the case when an attorney is requesting an expedited response to a question or when a client is requesting a quick update on a matter.
But is it okay? Indeed, there are a number of issues to consider as texting becomes the preferred mode of fast-and-easy communication, and particularly so, during this unprecedented global crisis.
Is it Allowed Under Ethics Guidelines? Simply Put: Yes
There is no rule under the ABA model rules or states’ ethics rules that expressly forbids a lawyer from texting as a means of communication with a client. In fact, according to the ABA’s Model Rules of Professional Conduct, subsection  of Rule 1.1 on Competence appears to require lawyers to stay abreast of the new ways technology allows them to communicate: “To 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….” (emphasis added).
In Florida, its Bar Board of Governors have noted that pursuant to Rule 4.7-18, text messaging is similar to email and other forms of written communication with clients, and thus permitted when soliciting prospective clients. See also Ohio Board of Professional Conduct, Opinion 2017-05, Issued Jun. 9, 2017 (“Given the nature of a [virtual law office], the available means of technology to keep the client informed are nearly endless, but a lawyer should carefully consider the best mode of communication, e.g., texting, emailing, online chat, or voice that will work best for each individual client”); North Carolina State Bar, 2017 Formal Ethics Opinion 1, Adopted Apr. 21, 2017 (“lawyers may advertise through a text message service”); Ohio Sup. Ct. Bd. Of Comm’n on Grievances & Discipline Op. 2013-2 (Apr. 5, 2013) (lawyers may solicit via text messaging).
Do Not Forget About Maintaining Client’s Confidentiality
With text messaging being considered a generally acceptable means of communicating with clients, it is important to remember the need to maintain client confidentiality, especially if attorneys are using their own personal devices to text with clients.
According to the ABA Model Rules of Professional Conduct, “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Model Rule 1.6(c). Additionally, clients have a reasonably expectation of privacy in communications with their attorney, and this is equally the case for texting. Cf. State v. Clampitt, 364 S.W.3d 605, 611 (Mo. Ct. App. 2012) (cell phone users have a reasonable expectation of privacy in the contents of their text messages); United States v. Zavala, 541 F.3d 563, 577 (5th Cir. 2008).
Of critical importance, then, is to ensure that the lawyer maintains a level of privacy around the device being used to communicate with the client. Such device should not be freely passed around to roommates or family members for playing games, reading the web or socially chatting on the phone. Also, the lawyer should not leave the device unattended to allow texts (communications) with the client to pop-up on screens (whether the phone is locked or not). Not properly securing the device could potentially result in the inadvertent waiver of the attorney-client communication privilege.
From a technology standpoint, attorneys should ensure that the texting devices have the appropriate encryption and security in place to prevent unwanted intrusions and unauthorized access to those communications. There are a number of different services that attorneys can employ here. For example, apps that have end-to-end encryption, such as WhatsApp or iMessage, should provide a safe and secure communications platform with clients.
Be Professional: Informal Texting With Your Client Can Surface Later
Texting may also result in a more casual – and sometimes, unprofessional – way of communicating with clients. And this could be problematic later in a potential malpractice suit or disciplinary matter.
In 2018, the Supreme Court of New Jersey adopted the Disciplinary Review Board’s decision to censure an attorney who texted, “HAVE FUN IN PRISON” when he refused to prepare for his client’s trial the weekend before the trial was start unless the client paid him first. As the Board observed, because of the attorney’s behavior, the judge was forced to release the jury and postpone the trial. The Board noted, that the attorney “was in a difficult position, having been required to continue representing an uncooperative, nonpaying client in a criminal matter. Nevertheless, his reaction to that predicament was one of defiance – to subvert the court’s directive by ‘poisoning’ the representation on the eve of trial.”
Before adding too many silly emojis or LOLs to a conversation with a client, it is key to remember that while a text message feels like an informal conversation, it is actually a formal communication (very much like a note written on professional letterhead). As such, it can be used as evidence in, say, a potential malpractice lawsuit down the road. Convenience is not a substitute for professionalism.
Texts May Contain Critical Case Evidence
At times, clients will provide details of their case through text messaging – including attaching audio recordings, pictures, or videos. The burden is on an attorney to preserve evidence. See ABA Model Rule 3.4 “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value”). Thus, lawyers need to have a mechanism in place to appropriately handle the archiving and preservation of those files and any accompanying communications. There are various ways to do this including (i) printing the conversations, (ii) taking screenshots, (iii) forwarding to lawyer’s email to be archived, (iv) or employing different software that saves entire conversations and files (e.g., Decipher TextMessage, SMS Backup+, PhoneView, CopyTrans, ZipWhip).
It is important to remember that if an attorney fails to preserve such evidence, then spoliation claims may arise or actions from the state bar for failing to appropriately retain client files. See, e.g., Passlogix, Inc. v. 2FA Technology, LLC, et al., 708 F. Supp. 2d 378 (S.D.N.Y. 2010) (sanctions of $10,000 for, inter alia, failing to preserve text messages); Regas Christou v. Beatport, 2013 WL 248058 (D. Colo. Jan. 23, 2013) (sanctioned for taking “no steps to preserve the text messages”).
Texting is a time-saving and very convenient tool, especially during a pandemic when attorneys and clients cannot interact face-to-face or where emails get buried. It is critical to remember that attorneys still have a duty to maintain confidentiality and preserve communications with their clients. And with those ethical duties, they also have to remain professional despite the casual platform being used to communicate.
©2020 Russell Law, PC
 Flowroute Survey Finds Consumers Overwhelmingly Prefer SMS to Email and Voice for Business Interactions, Dec. 12, 2016, available at https://www.flowroute.com/press-type/flowroute-survey-finds-consumers-overwhelmingly-prefer-sms-to-email-and-voice-for-business-interactions/.  State of Texting 2019 available at https://www.zipwhip.com/lp/state-of-texting-2019/.  “Bar Board Finds Texting is Not Prohibited Solicitation,” The Florida Bar, Aug. 15, 2015 available at https://www.floridabar.org/the-florida-bar-news/bar-board-finds-texting-is-not-prohibited-solicitation/.  https://www.ohioadvop.org/wp-content/uploads/2017/03/Adv.-Op.-2017-5.pdf  https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2017-formal-ethics-opinion-1/  See In the Matter of Logan M. Terry, An Attorney at Law, Dist. Dkt No XIV-2016-0368E (Sup. Ct. of NJ Jun. 8, 2018) available at http://drblookupportal.judiciary.state.nj.us/DocumentHandler.ashx?document_id=1098836 #texting #ethics #covid19 #pandemic #legaltechnology