Risk Management To Text or Not to Text, that is the Question by Mark Bassingthwaighte Many people today prefer to communi-cate by texting. What does this mean for lawyers and malpractice? Texting is ubiquitous in our culture, which makes it too easy. Instead of taking the time to compose an email or pick up a phone, it takes far less time to send a quick text at any time, day or night, and regardless of the setting. But is texting a good thing, particularly for a lawyer? Think about Comment 8 to ABA Model Rule 1.1 Competency, which reminds lawyers that they are to “keep abreast of changes in the law and its practice to include the benefits and risks associated with relevant technolo-gy.” If you are communicating with clients via text messaging, have you thought about the ramifications of doing so? Please understand that I’m not try-ing to suggest that a lawyer should never send a text message. I just want to make sure you’ve thought about the associated risks before doing so. 1. Handing out your cell number to clients may be a bad idea absent establishing some healthy boundaries upfront. It’s a work/life balance issue for me. I’m not a fan of 24/7 avail-ability because we all need downtime. Also, when people send a text, they are generally expecting an immediate response, even if it’s after you’ve gone home for the day. Are you prepared and able to manage that expectation? 2. I am concerned about the informality of text messaging and that it’s often communication on the fly. Texts are typically succinct, and that’s prob-lematic if texts are being used in furtherance of advising a client or as part of the client’s decision-making process. Compounding the problem is the failure of so many to capture and preserve such exchanges as part of the client file. As I so often www.vsb.org remind attorneys, in the context of a malpractice claim or disciplinary matter: If it wasn’t document-ed, it wasn’t said, or it didn’t happen. Are you able to capture and preserve any and all substantive exchanges and are you willing to make the commitment to ac-tually do so? If not, I’d seriously limit the use of texting. 3. Do you charge for your time texting clients? I would assume you do. Do your clients know that? Text mes-saging is a very inefficient way to communicate, again in terms of trying to have some sort of substantive ex-change. Allowing clients that option is an inefficient use of your time and can needlessly result in a larger bill than the client might be expecting. Why? It’s simply due to the need to send multiple texts to make sure you have all the information you need as well as to confirm the client has correctly understood the exchange. Is this truly the way you want to communicate with your clientele? 4. Finally, how do you know if the texts you’re sending will be received by the correct party? We often don’t think about who might have access to the client’s cell phone or even the family computer where text messages can show up. Making matters worse, how would you know that a client has texted you an urgent message when your phone is off because you’re in court? They will assume you received it and may rely on that belief in some fashion. Could this be a problem for an attorney? It already has been. Look, I have no problem using text messaging to pass along that there’s been a delay, the courtroom where you were to meet your client has changed, that a voicemail has been left that needs the client’s attention, or that you are now available. Those types of texts seem appropriate for the method of communication. If you count yourself among the lawyers who text, keep the above issues in mind and remember this: Texting has its place. I’m just hoping to help you define what texting might look like in your own practice, so you don’t get caught unaware. Mark Bassingthwaighte , ALPS risk manager, has conducted more than 1,000 law firm risk manage-ment assessment visits, presented numerous continu-ing legal education seminars throughout the United States, and written extensively on risk management and technology. His webinar on Best Practices for Client Selection in the ALPS CLE library is at http://alps.inreachce.com. He can be contacted at: mbass@alpsnet.com. VOL. 69 | DECEMBER 2020 | VIRGINIA LAWYER 49
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Risk Management
Mark Bassingthwaighte
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