Maybe the Time Has Come For Lawyers to Have A Conversation About Texting or SnapChatting With Clients

shutterstock_212129986For 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?


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