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To Text, Or Not To Text - The Lawyer's Dilemma

By Jim Dedman

In a recent post, Carolyn Elefant of the Small Firm Innovation blog asks: “Should lawyers text?”  An interesting question, that. Certainly, lawyers should not be shy about exploring new technologies, particularly when they are so monumentally embraced by the general public. Carolyn cites a recent Pew Research Center survey finding that nearly three quarters of American mobile phone owners use text messaging functions.  Clearly, lawyers, as consumers, text in their personal lives, but Carolyn focuses on the issue of whether lawyers, as providers of legal services, should text others as the representatives of their clients:

Given that texting is fairly pervasive, should lawyers text – either with each other or their clients? Of course, the answer depends on a given situation, but a minimum, lawyers should be text-literate so they can accommodate colleagues and clients with a preference for texting.

I remain cautiously skeptical (or skeptically cautious). As technology advances, and lawyers recognize new ways in which to communicate with their clients, in-house counsel, and opposing counsel, Elefant asks a fair question.  However, the medium of texting – its immediacy, its brevity, and its simplicity – suggests that it may be an inappropriate medium for any communication that is remotely substantive.  Texts, by their nature, are ephemeral.  They are not filed, they are not saved, they are generally not kept in any meaningful fashion.  However, communications with one’s clients – particularly communications which offer or purport to offer any type of legal advice – should probably be kept in one’s file.  Thus, lawyers who text may face the hassle of having to download, maintain, or otherwise track their texts and preserve them for their files.  This seems like an unnecessary task, particularly when users of smart phones can simply use an email rather than a text from the same device and avoid any issues on that front.

Further, because texts are expected to be incredibly, incredibly brief, and are usually sent quickly, it is unlikely that any communication that is substantive could be distilled to such an extent that it could remain in its proper context in the text medium.  How does one address a legal issue in a text?  How does one adequately offer guidance in this way? As attorneys, our bread and butter is the caveat, the disclaimer, and the cautionary tale; how can we express any type of opinion with the appropriate reservations when the number of characters is limited? (Interestingly, the same dilemma is posed by Twitter, where a user’s communications are limited to a 140 characters, and potential clients often send law firms direct messages with queries.)

In her post, Carolyn notes that she has never texted with clients (though she suspects she might be doing so were she still handling certain court appointments).  Perhaps the text medium might be useful for non-substantive logistical communications, such as “I’m in Courtroom 10 on the second floor” or “Don’t forget to bring the document we discussed.”  However, anything beyond that may be asking for difficulty, particularly if the information provided later becomes an issue. Indeed, from the professional liability angle, how will a lawyer who engages in texting with his or her client defend a claim of malpractice based on a text message?

In the end, the best approach may be to simply encourage the texter to call the attorney.  After all, if the client, in-house counsel, or opposing counsel is texting you, then they have a phone and they have your number.  It might simply be best to call them rather than to respond in kind.

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