Rule 1.4(b) addresses an attorney’s duty to ensure that the client is well-informed about the client’s options when a decision has to be made and requires attorneys to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions.” Comment 5 to Rule 1.4 reinforces the point that adequacy of the communication depends on the type of advice involved. When considering using a text to give the client advice on which the client will depend to make a decision in the case, keep in mind that most clients will view a text message as less important and less worthy of their attention than a formal email, letter, or memorandum. This has to do, in part, with the speed with which many people read and respond to text messages and, as a practical matter, means that there are always going to be significant client communications that do not belong in a text. Engagement letters, final form judgments, and settlement agreements are just a few of the examples of the kinds of communications that would not be suited for texting because they require the client to carefully read and understand their contents. These should always be sent by email or letter or delivered in person.
Rule 1.6 Regarding Confidentiality
ABA Model Rule 1.6(c) requires attorneys to make reasonable efforts to prevent the inadvertent disclosure of confidential information. Depending on the situation, this could counsel in favor of or against using text messaging. For example, if you are in a crowded or public location, sending a text instead of making a call that could be overheard by a third party may be wise as a preventative measure against disclosing confidential information. On the other hand, texts may be inadvertently disclosed due to default settings on devices such as preview settings or auto syncing with other devices. Confidentiality can be particularly problematic—for both attorneys and clients—if devices or accounts are shared with family members. Attorneys should have office policies and procedures in place to evidence “reasonable efforts” against disclosure of communications, including texts. Those procedures should include basic protective measures, such as using screen locks and password protections and removing synchronization with other devices to ensure that attorney-client communications remain confidential.
Even if texts are secure on the attorney’s end, there is no guarantee that they are secure on the client’s end. Third-party applications that incorporate end-to-end encryption can better help maintain confidentiality. To avoid having the client inadvertently waive the privilege, clients should be counseled about the dangers of using texts and other forms of electronic communication. If practitioners anticipate texting with clients, this can be acknowledged in the engagement letter, including the fact that texting may be less secure than other means of communication.
Competence and Texting
ABA Model Rule 1.1 requires attorneys to keep abreast of changes in the law to ensure competence, and comment 8 to Rule 1.1 specifically includes knowledge of the benefits and risks associated with relevant technology like text messages. This rule and comment are significant in terms of discovery because there is nothing about text messages that takes them outside of the realm of any other communication that may be discoverable in a lawsuit. Therefore, it is important that substantive client text messages are preserved in case they are needed in discovery. Although clients are increasingly aware that emails can be discoverable, they may think of text messages as temporary because they are easily deleted and often not backed up or retrievable once deleted. Attorneys should regularly download substantive client texts to the client’s file. Clients, likewise, should be notified in writing of the importance of preserving texts—and told that text messages are just as discoverable as any other form of communication that relates to their legal matter. Because of the ability to auto delete text messages, this notice to the client should include the requirement that text messages be regularly preserved; if the client has encrypted text messages, they will need to be unencrypted in order to save them.
Privacy Concerns and Considerations
Texting can be more complicated in cases involving privileges or privacy regulations other than those governing attorney-client communications. In health-care cases, for example, the physician-patient privilege must be protected, and there are privacy concerns that must be addressed under both state law and the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which controls the electronic transmission of protected health information (PHI). Every attorney who may come into possession of PHI should know both the federal and state laws that may govern the possession, storage, and distribution of PHI. A regular text message program is unlikely to satisfy the privacy requirements under HIPAA, in large part because the sender cannot control where the information is ultimately sent. There are ways to protect against this, such as using a secure messaging system or encrypted emails. Practitioners should weigh the ease of texting in these kinds of cases against complying with privilege and privacy rules, regulations, and laws.
Text messages are an efficient form of attorney-client communication, and most clients want to use them to communicate with their attorneys. To make text messaging not just efficient but also an effective form of communication with your clients, be sure to comply with your duties regarding communication and confidentiality by carefully considering the content and circumstances before texting.