Question

A number of my clients are now texting messages to me. Should I respond to these text messages and, if so, are they part of the client file?

Answer

Texting has become a much more common way for clients to communicate with lawyers. In many instances, the lawyer would prefer not to receive a text message from a client, but client expectations have made this an expected part of the communication process. Lawyers can indicate in their engagement letters that they do not respond to text messages but doing so will not likely forestall clients from communicating in that fashion.

Lawyers are obligated to communicate with clients regarding the representation. SCR 20:1.4 of the Wisconsin Rules of Professional Conduct requires that a lawyer communicate with a client about the representation and that such communication be maintained on a reasonable basis. Because clients are using text messages as a way to communicate, lawyers will be expected to use that type of technology to communicate with clients. The problem is deciding which text messages should be saved.

Most smart phones allow for forwarding a text message to the owner’s email address to preserve the communication. There are also applications available for purchase that make it easier to forward text messages to an email address and then properly store them as part of a client’s electronic file. Using either technique, lawyers must exercise reasonable protections to ensure the confidentiality of the client communication and preserve the text message communication, both because of ethical requirements and for liability protection considerations.

The more difficult question is which text messages the lawyer should preserve. Several ethics opinions have suggested preserving in some manner only those text messages that contain legal advice or client instructions to the lawyer. The lawyer might not need to preserve text message communications for simple matters such as scheduling a conference or communicating general information.

In Wisconsin, the client file is considered to be everything the lawyer receives or communicates during the course of representation. This may mean that Wisconsin lawyers should preserve all text messages received by and sent to the client, although there is no specific guidance on this requirement. Certainly, a lawyer should preserve text messages that contain important information relating to the representation, whether the sender is the client or the lawyer. The information can be stored electronically and reproduced as part of the client’s electronic file.

Another option is for a lawyer to prepare a summary of any text message in an email or other format and store that information as part of the client file (that is, memo to file). This becomes a two-step process of receiving the text message and then creating a new message or summary of the message for the client file.

Lawyers should be careful about the types of information they communicate to clients via text message. Using a text message to communicate important client information is very risky because of the transient nature of text messages and the potential that a client will not recognize a text message as an important communication by the lawyer. Using text messages for simple information about calendaring or other types of limited information is the best practice.

Lawyers must be careful when using text messaging as a way to communicate with clients. Increasing numbers of clients expect communication by text messaging so lawyers must develop protocols that will allow for such communication while preserving client confidences and properly storing client-related information.