As clients are asking their lawyers to engage in instantaneous communication, many lawyers are accommodating them by using text and instant messaging for client communications. While text and instant messaging provide means to quickly exchange client information for emergency transactions or court filings, precautions must be undertaken when using this technology.1
Though clients and their lawyers may desire to communicate at a blistering pace, lawyers must be comfortable that they are not exposing themselves to risks such as errors and miscommunications from this technology. For this reason, some ethics commentators do not recommend using text or instant messaging for communication on material matters.
Establishing Reasonable Client Expectations. A potential pitfall of using text and instant messaging is that clients may come to expect an on-call lawyer.2 Whereas emailing clients may expect a response within hours, those who use text or instant messages may expect a response within minutes. Lawyers should set reasonable expectations for communication, consistent with professionalism ideals, including manner of communication and response time.3
Maintaining Confidentiality and Client-lawyer Privilege. As with other technology, lawyers and clients who use text and instant messaging must be careful that communications do not fall into the wrong hands through inadvertence, or by theft or interception.4 While security measures such as password protection help in ameliorating risks, limiting the use of this technology ensures better maintenance of client privacy.
Retention of Client Communications. As electronic communications are part of a client’s file, it is important to know that text messages and instant messages may be more difficult to preserve.5 As these recordretention challenges can create documentation and proof problems for lawyers facing ethics complaints or malpractice claims, important communications should be made in email or regular mail.