The Business of Law – Marketing and Business for Enterprising Attorneys

Martin Lomasney, a legendary Boston politician from the West End, coined a now-popular expression regarding communicating.  He famously advised his young associates, to “never write if you can speak; never speak if you can nod; never nod if you can wink.”

Lomasney would surely spit out his Ward 8 (a drink named in his honor) if he learned that many lawyers are now communicating with their clients via text messaging. But that’s exactly what’s happening.

Like it or not, the mobile communications revolution has hit the legal profession, and according to a recent article in Lawyers USA (subscription required), more and more clients are wanting their attorneys to communicate with them via text message, online chat, or instant messaging applications such as Blackberry Messenger.

That’s good news in some ways for the clients who feel like their lawyer is now more accessible than ever, and they can communicate with them in ever-faster ways.  But according to legal malpractice experts these new media pose new challenges for attorneys.  Here are some of the pitfalls as reported by Lawyer’s USA:

1.    Texting increases the likelihood of errors and miscommunication because of the short rapid phrases and use of abbreviations.

2.    Texting and messenger features employed by smart phones can lead to loss of sensitive data and information.  It’s still fairly easy to lose your phone. But imagine losing your phone with all kinds of sensitive client information stored in old text messages on it.

3.    Texting can also lead to violations of information security because you can’t be sure who’s on the other end of a text message.  Most phones are not as secure as email accounts, and anyone could pick up a cell phone and start texting.

4.    Finally, texting can lead to document recovery and chain of custody issues because text messages can be inadvertently deleted very easily, and they are not typically backed up by a server.

I suspect the same will happen with respect to text messaging and other forms of online and mobile communication.  The times they are a–changin’ and we as lawyers will, once again, have to change the rules and mores  along with them.

As my fellow ethics lawyer Ellen Pansky of Pansky Markle & Ham said in the article:

“Both in a civil action for malpractice or in a disciplinary proceeding, if a lawyer can’t document [that he or she] had a certain communication there is something of a presumption it didn’t happen.”

This is of course exactly what Martin Lomasney wanted.  But for attorneys, it’s better to have a record of what transpired and to preserve that record.

All of that said, I must say that this feels like a bit of much ado about nothing.  I remember when lawyers first started using email and there was somewhat of a hue and cry citing many of the very same concerns now being raised about instant messaging and texting.  Eventually it all died down as the courts and state bars conceded, without saying so, that the prevalence of email required its acceptance as a communication method between  lawyers and their clients.  Today it would be nearly impossible to find attorneys who don’t use email.