first, the benefits of texting are several.
Transmitted in virtually real time,
text messages are fast. They go directly to one’s cell phone (or other
mobile device) and tend to get more
immediate attention. Transmitted by
cellular servers, rather than computer servers, there is less risk of losing
messages from a server going down.
Texting can enhance client relations
based on better communication, demonstrating that an attorney is responsive and decisive.
Always ask clients how they prefer
to communicate. Let clients know
what you are and are not comfortable
discussing by text. Some subjects are
better for texting than others. Texting
is not advisable for highly confidential, complex, or important information.
Before texting confidential information, consider the recipients. Be sure
they understand the need to protect
confidentiality. When clients use company phones, employers may claim a
right to read text messages. When clients use personal phones, there may
be access by family members or others.
Protect confidentiality with effective passwords for phones. Firm policy
Texting is an effective tool, and is some clients’ preferred method
But texting also presents risks.
How to Reduce the Risks of
Text Messaging with Clients
DANIEL W. HAGER, CORPORATE COUNSEL, AHERN INSURANCE BROKERAGE
A recognized expert in lawyers’ malpractice prevention and legal ethics, Daniel
has provided consultations and risk management services to law firms for more
than 20 years. Before joining AHERN, Dan was a partner at AV-rated Roeca
Haas Hager LLP, where he defended lawyers against malpractice and other
claims for more than 25 years.
To speak to an AHERN professional, call (800) 282-9786.
should prohibit attorneys who text
confidential information to clients
from allowing others to access their
phones. Free software is available for
encrypting text messages.
When accessing text messages in
public, prevent them from being read
by third parties. Set phone notifica-
tions so they do not show previews
of messages, which could be read by
Phones should be also equipped
with kill switches to deactivate them
if lost or stolen, and add GPS tracking
or a locator to your service. When dis-
carding a phone, erase its memory.
Risks in Preserving Communications
Unlike e-mail, text messages are not
stored on servers and service providers do not preserve them for long.
Without taking additional steps to
save them, texts generally disappear.
When a communication is important
enough that it should be documented, it should not be sent by text but
by some more readily preservable
means. Firm policy should at least
require that any significant communication sent by text be printed or
Sometimes lawyers need to communicate but not create a discoverable “paper” trail. Such communications are better done in person or by
Risk of Miscommunication
Texts can be misunderstood. A short
message might unintentionally communicate anger; humor or sarcasm
can be misconstrued. While autocor-rect is helpful, it can lead to garbled
messages that convey lack of attention to detail. While shorthand and
acronyms are common in texting,
clients may misunderstand or be irritated by them. As with any written
communication, make sure you convey a professional tone with a clear
Risk to Attorney Privacy and Control
Text messages include the sender’s
phone number, giving clients greater
access to their lawyers at any time
of day. By effectively communicating
the ground rules for texting, lawyers
are better able to strike a proper balance between communication and
Where there is no need for an immediate response to a client’s text,
respond that you will look into the
matter and get back to them. Even
without an immediate substantive
response, with texting there is an
expectation that some response will
be forthcoming without significant
By reducing the risks in texting,
lawyers can better enjoy the benefits
of this powerful communication tool.
AHERN is the endorsed broker for the State Bar of Arizona. AZ Lic #118691