- There are ethical and practical considerations when texting with a client, blogging about a case, and responding to an online review from a client.
There is little doubt that technology has become an integral part of the legal profession. Most states have even adopted a duty to maintain competence in technology (see Comment 8 to Model Rule 1.1). Although e-discovery, e-filing, and Zoom are commonplace, some standard technologies, like texting, may still give lawyers pause. There are ethical and practical considerations when texting with a client, blogging about a case, and responding to an online review from a client.
You received an excellent settlement offer from your opposing counsel that expires in 24 hours, but you have not been able to reach your client by phone or email. Can you send your client a text?
In short, yes. Model Rule 1.4, which regulates attorney-client communications, does not restrict the methods by which a lawyer may communicate with a client—it only defines the minimum level of communication required of an attorney. However, an attorney must keep in mind several considerations when deciding to text with a client.
Have a frank conversation with your client at the outset of the representation to discuss the potential risks of texting and what they can expect from you (like whether you will bill them for each text). Consider asking your client for a preferable mode of communication or discussing the categories of information about which you will and will not text. Assure your client that even though you may text, you will always have a face-to-face meeting or phone call when necessary. Consider putting any agreed-upon parameters in writing as part of your engagement agreement. You can even copy and paste Model Rule 1.4 (or your state’s equivalent) right into your agreement, so your client can reference your ethical requirements.
Text messages can be exposed to third parties more easily than traditional modes of communication like phone calls, letters, and emails. For example, if your text messages appear on your lock screen, a third party could inadvertently view that communication. All communications with a client are confidential, under Model Rule 1.6, and attorneys must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of information relating to the representation of a client.
Of course, there are easy solutions to the above example. Ensure that your phone’s settings do not allow text message content to appear on the lock screen, and always have a password on your phone. Think about what platform you and your client are using to text with each other.
If a third party does happen to obtain or read a text message between you and your client, even if it was an inadvertent disclosure, that communication could lose the protection of the attorney-client privilege. Losing the shield of privilege could have drastic consequences for your client. Thus, although you do not have to be a leading technology expert to text with your client, you need to make reasonable efforts to ensure that your communications with your client stay confidential and privileged. See ABA Formal Ethics Opinions 477R and 483 for further discussion on your obligations regarding the use of technology in representing clients.
Are you able to discuss high-level arguments and theory with your client via text? Probably not. Perhaps you can text to confirm the date and time of the next court appearance. At all times, Model Rule 1.4 should guide what you do—and do not—communicate with your clients via text. Ask yourself if you can keep your client “reasonably informed” via text or if your text will “reasonably explain” the matter to allow your client to make “informed decisions.” Read the text message from your client’s perspective, and make sure your message could not be misunderstood. Even something seemingly simple, like confirming the terms of your engagement agreement, can be misconstrued as, say, a modification of that agreement if you do not text your words carefully.
Finally, consider how you can save and access text messages with your clients for future retrieval. While your texts with a client are privileged (and confidential) communication, you may want to disclose those texts at a later date. For example, you may find yourself in the unfortunate situation of defending against a legal malpractice lawsuit, disciplinary charge, or a dispute about fees. Proving your communications with your client may be critical. Consider printing out your texts weekly, monthly, or quarterly, or having another solution in place. Always refer to your jurisdiction’s requirements on file retention and Rules of Professional Conduct for more guidance.
You recently won a big case. To exhibit your successes and market your legal prowess, you want to start a blog. Can you?
Yes and No. Model Rule 1.6 requires attorneys to keep all information learned from the representation of a client confidential. Many lawyers fail to distinguish that this duty is broader than the evidentiary attorney-client privilege and applies to any and all information about a representation, no matter the source. For example, a lawyer must keep information learned from a third-party witness confidential, just like information learned directly from a client, even though the information learned from a third-party witness is not a privileged attorney-client communication.
Nevertheless, you could ethically maintain a blog, so long as you have informed consent from the clients whose cases you discuss, or, absent that, you use hypotheticals. Use caution: a third party must not be able to ascertain the identity of your client. See ABA Formal Opinions 480; 98-411. Lawyers have gotten into disciplinary trouble when their hypotheticals were not nearly hypothetical enough. See In re Peshek, M.R. 23794, 2009 PR 89 (Ill. 2010) (lawyer suspended after blogging about her clients using derivatives of their names and inmate numbers). Similarly, you must be careful not to make false or reckless statements about a judge’s qualifications or integrity, which is prohibited by Model Rule 8.2(a), no matter how much you disagree with a judge’s ruling.
Further, consider Model Rules 3.5(a) and 3.6(a), which, respectively, prohibit an attorney from influencing (or attempting to influence) a judge, juror, prospective juror, or other official, and from making an extrajudicial statement about a pending investigation or litigation matter that is substantially likely to prejudice the adjudication of the matter materially. Depending on the language of your blog or social media post, readers could interpret it as an attempt to influence a pending proceeding improperly. Avoiding this is easy enough, though—keep your blogs or other publications to already concluded matters. If you cannot do that, try to stay as neutral as possible in your delivery.
You may wonder what you can do in those not-so-fun situations where a client leaves you a negative, or even dishonest, review on a public platform like Google Reviews, Avvo, or Yelp. Negative reviews are indeed among every lawyer’s worst nightmare, presenting an ethical dilemma that many lawyers are unsure how to navigate. While the safest bet is always checking your jurisdiction’s Rules of Professional Conduct, disciplinary decisions, and ethics opinions, here are some things to keep in mind.
Remember that you are required to keep all information about your representation of a client confidential, and there is no expiration date on this duty.
Suppose you have determined that you would like to respond. In that case, you could acknowledge your state’s ethics rule: “The [state] ethics rules prevent me from revealing confidential information in response to this review.”
Or, you could draft a neutral response: “While we pursued every available strategy for you, unfortunately, the law was not on our side.”
Give yourself a day or two before posting the response. Reread your response after you have had time to calm down and process the negative review and remember that prospective clients will read your response and gauge how you will respond to and treat them.