Maybe the Time Has Come For Lawyers to Have A Conversation About Texting or SnapChatting With Clients
For the next generation of clients, texting, particularly through mobile apps like Facebook’s messenger app or Snap Chat – is fast replacing email or phone calls as the preferred mode of communication,
according to a Pew Research Center Study released last month. Based on interviews with over 1900 adults, Pew’s research team found that 36% of smartphone owners overall, and 49% of smartphone users between 18 and 29 are using messaging apps. Of those users 17% overall, and 41% in the 18-29 range use apps that automatically delete sent messages such as Snapchat.
Still, it’s one thing to idly chatter with buddies over text – but would users actually use text apps for serious matters such as finding or communicating with a lawyer? Yes – though I base my prediction on an unconventional but accurate bellwether: today’s dating scene, documented in Modern Romance, a new book by Aziz Ansari describing how technology has transformed romance in the modern age. For example, based on various focus groups, Ansari found that many participants – largely young people in their 20s and early 30s’ had been dumped by text – even those who’d been in serious relationships that lasted months or even years. Meanwhile, phone calls were considered the second to least favored form of communication (with email hardly used) – with several respondents commenting that having a conversation either to ask someone on a date, or to break up later created such a high degree of social anxiety that the phone (or in person communication) was to be avoided at all costs. The point is that if today’s young people are so averse to phone or in-person communication even for something as personal and serious as relationships, wouldn’t the same behavior potentially apply to lawyers?
Yet even as the next generation of clients (and even today’s generation) have become more facile and comfortable with text apps to communicate, lawyers still pride themselves on NOT engaging. “My representation agreement says that I do not respond to text messages,” boasts one lawyer. A recent blog post by a legal tech company, Smokeball asserts
Snapchat’s users are mostly females, age 13-25 years old, not a demographic usually looking for legal help. The app may be fun and trendy, but its audience and content are not aligned with the legal industry’s target market, and this trend is unlikely to bring business to your firm.
Well that may be true today, but not tomorrow.
Communication with clients is the touchstone of the attorney-client relationship. Communication is so sacred that it’s protected by privilege and so critical that lawyers who fail to communicate with clients face sanction. So why is it that when tools emerge that would make it easier for us to communicate with clients and for clients to communicate with us, that we lawyers throw up obstacles rather than figure a way to incorporate these new technologies while still protecting our clients’ interests?
Turns out, there are ways to text while still maintaining confidentiality. As Gigcom describes, a service called Get Confide allows executives to communicate via confidential messages, while a service called OneOne supports untraceable messaging with texts that can be set to self-destruct like SnapChat. There’s apparently even a secure mobile messaging app for lawyers call Cirius .
Even if you’re not comfortable using messaging to communicate with clients, lawyers can still use it to remind clients of appointments, send directions to the office or for quick case updates. And not surprisingly, lawyers are avid to use texting for marketing (though for me, that’s probably the worse use) A few months back, the Florida Bar’s Board of Governors now permits lawyers to contact clients by text – deeming than more like emails (which are allowed for solicitation) than phone calls or in-person contacts which are not. Two years ago, Ohio ethics regulators issued an opinion allowing solicitation by text. Wisconsin takes the same approach, provided that texts otherwise comply with ethics rules. Of course, ethics rules aren’t the only source of regulation on texts; last year, a New York law firm that used texts to offer legal services to debtors was hit with a class action alleging violations of the Telephone Consumer Protection Act.
I’m not suggesting that texting clients is appropriate in all situations – particularly in highly sensitive matters, or to otherwise subvert ethics or judicial rules (such as texting hints to a client during a deposition). And you certainly don’t have to be available on text 24/7 – it’s reasonable to manage clients expectations by setting boundaries such as the hours during which you’ll receive texts and the amount of time in which a response can be expected. But as a lawyer, when a tool emerges that makes it easier for me to communicate with my clients – which after all, is part of my job – I’m going to try to find a way to make it work.
Do you text message with your client? What’s your experience been like?
While much of this would have to be outlined in a retainer you also have to consider that even if a lawyer likes it the client may not. However, the confidentiality issues are what make lawyers jittery and you clearly know this, The problem with texts is they are more intrusive than emails and more vulnerable to prying eyes. Depending upon settings the info contained within the text may actually show up on the locked screen of the client’s phone for the world to see plus the lawyer’s/firm name is also seen while the phone is not in the owner’s hands. Not so with emails. There is a lot more vulnerability for lawyers who text (even if it’s just a reminder of an appointment because that can breach confidentiality, too) than email communications. This is just my opinion but it’s how I see it. Does this mean lawyers shouldn’t text? I’m not 100% sure.
I respond to texts that I receive from clients as long as there isn’t anything specific to their case, which limits it to reminders to log into the client portal to check a message I’ve posted to their case file or review a document I’ve uploaded for them.
As far as using a new app specialized for confidential messages, I can’t see any of my clients downloading and registering to use something like just for communicating with me. Especially when I have a client portal they can log into from their mobile device and check all aspects of their case.
These are concerns – but there may be technology solutions. I just wonder whether it isn’t time to revisit the issue as use increases.
I agree – downloading another app is a deal breaker – unless the client himself asks for it.
For me it depends on the client and the type of communications to be had. Some clients I would never get to sign anything if I had to get them to e-mail back because they can’t e-mail while at work but can text. At least a conversation over a personal number is preferable to the client who doesn’t have the option of checking their personal e-mail at work and then would be communicating on the work e-mail that may be monitored by the employer.
In most cases I start with e-mail as the primary form of contact but depending on the client I go to more calls or more text messages. In more involved cases clients have questions about things like processing time of a judgment or logistical issues with meeting you at the court. Those times I think texting can be great. I will often send more detailed messages over e-mail and use texts to let the client know that I sent them an important e-mail and need a response.
Well it would only show the law firm name if that is how the client adds the number to their contacts. Usually I would expect it would seem like any other personal text. Like “Hey Client X Paul here, did you get that e-mail I sent you yesterday?”
Sure anyone could pick up the client’s phone and read their texts but the same could be said for e-mails, which would also potentially show up on the lock screen. With everything on people’s smartphones I don’t see how texting is much more risky than simple e-mail.
I guess what I’m saying with texts is they are generally ‘push notifications’ and popping up spontaneously in all manner of environments versus someone proactively going into a client’s password protected email account. I’m not saying it shouldn’t be used but I do think it sets up a whole other set of issues different than email accounts.
Right but in many cases clients have push notifications for e-mails too so unless the attorney is using a secure client portal, (which drive me nuts by the way when I have to use them) it is just as visible. So it is a distinction without a difference. Clients using an iPhone or Android device respond to e-mails just like they would a text and often e-mails are also readable on the lock screen.
I had an older client, a lawyer, who had his secretary handle all his emails ( incoming and outgoing) and would not answer phone messages. I had great difficulty getting him to communicate with me. About two thirds of the way through the representation, I finally figured out that because he has young adult children, he texts. Not only could I get a response from him, but I would get a response almost instantly. I resist communicating with clients by text, but sometimes it is necessary.
I text with some of my clients from time to time, though it’s not a regular practice. I’m seeing it pop up more and more though with other services I use, particularly dentists and doctors. I think for communication itself picking up the phone or email is still best – it’s just tough to get your point across in a text. But, for appointment reminders, etc., it can really boost your show ups.
There are services today that allow a law firm to text their landline number and use a secure log-in to send and receive texts without using personal cell phones (which is often the concern with law firms-separation of personal with business). It works just like your mobile device and no app needs to be installed on the user side. This helps attorneys who also need to justify billable hours and time worked on cases which include correspondence with the client.
Email communications are not any more secure than text messages and arguably, texting with clients ensures that sender and receiver are verified rather than emails that can often be spoofed. Technology will continue to change the way all businesses communicate and just like before email became an acceptable form of communication for law firms, the process needs to be fine-tuned according to each law office and their communication standards.
Ultimately, you cannot control how a mobile user utilizes their device ie. whether they actually lock their phone, their push notifications show sensitive content on the home screen or any other potential communication apps on their phone like email or social media. If that is a concern, you should also not be using email either. No forms of communication outside of a soundproof and visually separated office will fully provide attorney-client privilege if you want to be 100% compliant so take technology with a grain of salt here and if you set up your process in the right fashion, texting could be a vital and much needed form of communication for your practice.