SIDEBAR Fall 2019 - 12

MONTGOMERYBAR.ORG

To Text or Not to Text:
Communicating with Clients
in a Cyber World

A

s lawyers, communicating with
our clients is a vital part of
our practice. Not only are our
communications with clients a critical
part of simply being able to handle
matters on their behalf but keeping clients
informed on active or ongoing matters is
also an ethical obligation. The Rules of
Professional Conduct require that we:
* Promptly inform a client of any
decision or circumstance for which
the client's informed consent is
required;
* Reasonably consult with the clients
about the means by which the client's objectives are to be
accomplished;
* Keep our client reasonably informed about the status of a
matter;
* Consult with our client about any relevant limitation on
our conduct if we know that our client expects assistance not
permitted by the Rules of Professional Conduct or other law;
and
* Explain a matter to the extent reasonably necessary to
permit our client to make informed decisions regarding the
representation.1
However, the Rules also require that we maintain
confidentiality of information relating to our representation of a
client unless the client gives informed consent or the disclosure is
otherwise permitted.2
The challenge we face as lawyers is determining what is the
best way to communicate with our clients. In an electronic
world, it is almost impossible not to utilize electronic methods of
communication.3 Good or bad, most of us are not far from at least
one electronic device most hours of the day - so too are our clients.

12 SIDEBAR

Benefits of Texting
There are advantages to texting
as a method of communication. Text
communications allow for quick and
easy communication with our clients.
For instance, texts allow us to update
our clients in the event of a last-minute
schedule change or if you are running
behind to meet them. In most instances,
text communications also allow you to be
reached immediately should an emergency
arise with a client or their business. Also,
for some clients depending on their
occupation or industry, other modes
of communication may not be a viable option. For example, it
may difficult for someone in the construction industry to take a
telephone call from a busy worksite.

Risks of Texting
Along with the benefits of texting comes risk. In fact, the
same things that we may consider benefits of texting could also be
considered a risk. For instance, how do we define boundaries with
our clients and manage their expectations? Do we really want to
be texting with clients at all hours of the night and day? Probably
not. Texts may also be an inefficient method to discuss substantive
matters. Not only does the expectation of a quick response time
impede your ability to adequately consider a question posed by
a client, but it may also cause you to oversimplify your response
when the client would be better served following your thorough
review and analysis of the issue. Texting with clients also raises
security and confidentiality concerns. Do you know who has
access to your client's phone or electronic device? Text messages
are often viewed as a more informal method of communication.
Does your client understand that such communications should be
considered part of your attorney-client relationship and hold the
communications as such?


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SIDEBAR Fall 2019

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