“The single biggest problem with communication is the illusion it has taken place” – George Bernard Shaw. ​​

When meeting with prospective clients or when going over paperwork, retainers, contracts, etc., attorneys often discuss the “attorney client relationship.”

Morally, our clients deserve to know the bounds of the representation about to be provided, and ethically, we have a duty to talk about what that relationship is going to look like going forward.¹

However, as a profession, attorneys often fail at one critical component important of this relationship: Communication. An attorney-client relationship is a relationship, and just like all other relationships in life, it needs effective communication to be successful.

The first rule of effective communication is that you must communicate in a way that the other party understands. There is a reason books extoling the virtues of love languages and communication strategies regularly find themselves on The New York Times bestseller list: They work!

Yet, even though we instinctively know that the ways in which people communicate are changing, the bulk of attorney communication still takes place via letters, phone calls, and faxes. Those are fine and reliable legacy forms of communication, but as we continue to adapt to a digital age, and as the ways in which we communicate in our personal lives evolve, we as a profession must also adapt our methods of communication. Adapting to newer forms of communication is not only beneficial for our clients, but it can be beneficial to the lawyers and firms that use them too.

A recent study shows that roughly 90% of people ages 15-25 feel some anxiety when talking on the phone. Further, over 50% will not answer a telephone call from an unknown number and 30% regularly avoid picking up the phone altogether.²

Those sorts of numbers directly impact our profession’s ability to comply with our responsibilities under the Model Rules of Ethical Conduct, specifically Model Rule 1.4 regarding communication.³

Don’t Fear Entering the Digital Age

Here are the prevailing digital ways to communicate – and some considerations when using them:

Texting: Without a doubt, the biggest shift in communication has come in the form of Short Message Services (SMS) text messages. These messages are short, concise, and easy to send and view.

Texting can open the door to a conversation, helping ensure that a phone call will be answered or that a letter was received. They can also be used to send reminders to your clients about upcoming appointments or missing paperwork. Since phone providers often charge different rates and fees, it is important to get consent from your client before sending them text messages.

However, as great as texting with a client can be, it does come with drawbacks. It can feel unprofessional, and text messages are more difficult to document. Text messaging is not ideal for discussing in-depth or complex legal matters.

Texts messages are often not as secure as email or other forms of written communication, and texting from anything outside of a personal number can be difficult. There are a few free, low-cost messaging services on the market to provide attorneys with a secure platform that protects the privacy of both parties while allowing for easy documentation and compliance with record keeping policies.

Communicating via app: Beyond traditional texting services, many people now communicate through specific app messaging platforms. Services such as WhatsApp, Messenger, WeChat, and Telegram are increasing in popularity daily.

Many of these platforms do provide end-to-end encryption and secure messaging, but at a cost. These services use data and information about usage and user patterns and monetize that information.

If you are thinking about communicating with a client via app, it is very important to read the terms of use for each individual app before deciding whether your practice should include such services.

Email: The use of email has become ubiquitous in the professional world, and with good reason. It is a reliable and fast form of communication that plays nicely with the Model Rules of Professional Conduct.

However, here are some considerations before emailing a client:

Beware “reply all.” It can be tempting to hit that “reply all” button, or carbon copy additional parties on an email as it saves time. Know that the more people who are added to an email chain the more likely it is that confidential information will be inadvertently sent to a party that was not privy to that information. The best practice according to the American Bar Associati​on is to send emails directly and individually to the intended recipient, even if that means sending the same email multiple times.⁴

Documentation is essential. Although it is easy to recall an email and properly document the communication that occurred, emails that are sent often stay in the email server from which they originated. Attorneys must be sure to document all digital communication using whatever process is traditionally employed. Emails are subject to the same record keeping and discovery rules that govern all other forms of communication.

Conclusion: Good Communication is Required for Effective Representation

As an industry, we need to become more proficient at meeting our clients where they are at. Without effective communication between parties, we cannot provide effective representation.

Zealous advocacy must be built upon robust communication, and our profession must progress past simply mailing letters or leaving voicemails hoping that the right person hears it.

The only way to determine the best means of communication with your client is to have that conversation. If we all take time to build conversations about communication into our practice, we will be better for it.

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ ​​​Marten Transport v. Hartford Specialty Co., 194 Wis. 2d 1, 533 N.W.2d 452 (1995). An attorney-client relationship is not formed simply because one of the parties knows that the other is an attorney. Such knowledge, however, coupled with legal advice being sought and provided, ordinarily is enough to establish the relationship.

² Matt Drake, “Hanging on the Telephone! More Than Half of Gen Z Won’t Pick Up the Phone to Their Parents,” Dail Mail, London, Oct. 12, 2023.

³ Model Rule 1.4 states: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

⁴ American Bar Association Opinion 503 states “In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.”