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Attorneys wonder if texting is consistent with rules on lawyer compliant communication. Clients increasingly desire to communicate with their lawyers in ways that are familiar and convenient for the clients. For many clients, communication via smartphone is the most familiar and convenient form of interaction. The clients are not, however, using the call or e-mail functions on their phones – the days of Blackberry are gone. Instead, clients are texting and using apps like iMessage, WhatsApp, or WeChat to send written or voice messages or to receive even voluminous documents.
Clients’ preferences are always an important consideration in the legal profession. When, however, lawyers agree to communicate by way of messaging platforms or old-fashioned text messages, several other equally important considerations determine whether these messages qualify as lawyer compliant communication. Lawyers will want to work with clients to establish what content is appropriate for these forms of communication. For example, a complex strategy discussion about a merger or the exchange of potentially market-moving non-public information in a capital markets deal should be avoided. These concerns about the substance – the what – of messages will require good judgment from lawyers and good information to clients about how to protect and preserve confidentiality. Lawyers may be able to address these substantive concerns through information and training.
Communicating with clients via messaging platforms also raises a number of technical concerns that influence lawyers’ ability to comply with certain regulations and best practices – the how. These additional practice and compliance concerns are heightened in large law firms with multiple lawyers to coordinate and monitor to enforce lawyer compliant communication rules. These technical concerns include digital security and data ownership and the needs for documentation and confirmation.
These concerns may sound familiar to lawyers who experienced the transition from paper to email, but the proliferation of messaging platforms and devices has heightened the complexity and the risks. In the “old days,” proprietary email servers allowed firms to maintain sufficient control to use email confidently. Today, messages may pass through third-party platforms on devices that are often the lawyers’ personal property.
When allowing communication with clients via SMS or instant messaging platforms, firms must answer “yes” to the following questions to ensure lawyer compliant communication:
Relying on the diligence of individual lawyers and the good faith of clients is not ideal. Instead, law firms can rely on automated enterprise solutions, like LeapXpert. Those allow the firm to respond confidently “yes” to each of the above questions.
Constant demands from clients to communicate via messages mean that the transition away from calls and emails is already underway. Is your law firm ready?
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