As more clients ditch email for text and chat tools, attorneys and their law firms are forced to navigate the risks of operating in characters instead of paragraphs. Can they keep up with the times?
By Rhys Dipshan, Corporate Counsel | September 30, 2019 at 01:00 AM
Long accustomed to writing formal letters and assiduously crafting contracts, today’s lawyers may have finally learned the art of brevity.
As email goes the way of phone calls—increasingly perceived as a formal communication channel requiring considerable time and effort—many attorneys are finding themselves communicating with clients through text messages or chat platforms.
“I text clients all the time, and I think many of my colleagues do,” says Etan Mark, partner at Mark Migdal & Hayden. But it’s not just texts—if so required, Mark also says he talks with clients over WhatsApp and Google Chat.
Of course, when necessary, Mark has to properly account for information sent through non-email channels. “To the extent we receive material information in a non-email communication from a client, the practice of our firm is to retain that message,” he explains.
But his firm does not actively manage the way he or its other attorneys interact with clients, and there are signs that it’s not alone. The 2019 LTN Law Firm Tech Survey found that only one-third of its 36 law firm respondents had an official policy for collecting non-email sources of electronic data, underscoring how most don’t supervise their attorneys’ communications.
The reasoning behind this lenient approach comes down to the belief that being too restrictive or heavy-handed with how attorneys communicate is unrealistic in an industry focused on client services. But this isn’t to say there aren’t limits. Some firms, for instance, will designate specific communication channels as the ones their attorneys should use for privileged conversations. Those that do not instead trust their lawyers to abide by the firm’s record retention polices when using non-email communications.
Yet few firms completely restrict the use of non-email communication channels outright, which for their attorneys can be both a blessing and a curse. While some say that using these channels has helped them become more productive, they also note there are risks in how this technology is altering client interactions. But end of the day, many admit it’s just another set of risks that they’ll have to learn to live with.
The Client Trap
For attorneys, communicating in the digital age can require a balancing act of sorts. With so many ways to interact with clients, “we have a divergence of goals here,” explains Kermit Wallace, chief information officer at Day Pitney. He says there is a tension between wanting to protect client data while also wanting to be as available and responsive to clients as possible.
Mark Migdal & Hayden partner Etan Mark
How firms address this tension will likely differ based on their culture and the clients and industries they serve. A common solution many enact, however, is to approve certain communications channels for business communications, which they can vet beforehand for security features like encryption or integration with enterprise mobility management software.
Anna Mercado Clark, partner at Phillips Lytle, notes that oftentimes, non-sanctioned channels will include texts and chat platforms, which she advises should be used as a place to discuss logistical issues like scheduling instead of substantive issues.
The problem, however, is uncooperative clients. Clark calls that a “tricky situation,” but does not think “the only options are to allow [the] use of a non-approved channel or cease working with a client.” She notes that depending on the situation, firms can try a number of resolutions, such finding a technology solution to help the client communicate the way he or she wants to, or vetting the client’s non-approved channel.
Wallace understands this challenge firsthand. “Our stance has been internally, and for client communication, the preferred—I’m hesitant to say mandated—way… is by email, or phone, or in a physically sent letter or memo.”
Still, Wallace acknowledges that sometimes there’s no getting around talking on a non-approved channel. “We want to be responsive to our client, and obviously in a channel that is not as controlled, I think the attorney [needs to] be more sensitive with what they would communicate.”
It’s situations like those that makes some wary of directing clients towards specific communication methods in the first place. “We’re in a service industry. We serve our clients, so it’s hard to come up with a policy that could be contrary to the way our clients want to communicate,” says James Paulino II, partner at Goldberg Segalla.
Instead of pre-approving communication channels, Goldberg Segalla relies on its record management policy to ensure that any relevant business information, wherever it may be, is properly retained. “We have electronic files for all our cases, and attorneys have the obligation to retain and store all relevant information,” Paulino says.
To be sure, Paulino notes that in terms of conducting business, the firm typically “sticks to email.” But that doesn’t always mean their clients do as well. “Unfortunately, client and non-parties use text. … You’ll email clients, and then they’ll text you because they have your cellphone number.”
But that’s just the reality of being an attorney in today’s day and age. While Paulino says his firm has secure ways to communicate and transfer information, “At the end of the day if your client is going to text message us, we can’t tell them, ‘Stop.’ They’re the client.”
Whose Calculated Risk?
The different approaches firms take to addressing their staff’s use of non-email communications ultimately comes down to whether it falls on the firm itself or its attorneys to take the lead in managing client communication risks.
Judith Flournoy, chief information officer at Kelley Drye & Warren, notes that using non-email communications is “a calculated risk on some level, but all communications have some inherent calculated risk unless you are physically standing in front of someone having a conversation.”
Whether a firm takes the lead in mitigating this risk can largely depend on the sensitivity of the information it’s handling. Firms working in the research and development, patent and intellectual property, or M&A and IPO spaces, for instance, are more likely to actively manage and restrict the way their attorneys exchange information with clients, Flournoy says.
But even if a firm enacts policies or technology solutions around client communications, lawyers still have ethical obligations to understand the technology they use and to safeguard their client’s information.
It is not sufficient, Paulino explains, to rely on security or retention technology to automatically protect and preserve client communications. “At the end of the day, attorneys have the ethical obligations to maintain their files to practice law. And you cannot automate the satisfaction of an ethical obligation. I guess you can try to, but it seems, from an attorney’s perspective, counterintuitive to me.”
Still, attorneys’ ethical obligations mean they may have to keep up with the quick pace at which current communication channels change and new ones arise. Wallace notes that platforms client use is constantly evolving: “I guarantee you three years ago they didn’t want to use Slack, because it essentially didn’t exist and wasn’t an option.”
For some, keeping up with all these changes may just not be realistic. The better option, they believe, is trying to keep communications on a few, approved channels. “I sort of feel like, that’s the best you can do,” Wallace says. “Because otherwise to craft a policy around every other non-email communication channel is a fool’s errand.”
Keeping it Causal
For all the potential diligence non-email communications require, they have undoubtedly made attorneys’ lives easier in at least one regard: “[The] number one benefit of all this stuff is instead of getting a thousand emails a day, you get a hundred emails a day,” Mark Migdal’s Mark explains.
Suffice to it say, certain communications are just more suited to text and chat channels. “Where I might ask a very simple question, I might get an immediate answer,
Kelley Drye Chief Information Officer Judith Flournoy
whereas it could sit in someone’s [email] inbox for a while,” Flournoy added.
But it’s not all upside. Non-email communications haven’t just changed where attorneys and clients interact, they’ve changed how they interact. While email correspondence can be formal and structured, text and chat messages tend to be more causal—sometimes not ideal for a profession accountable for the advice offered.
“When a lawyer communicates with a client over text messages, it’s the same exact effect from a liability standpoint of communicating with a formal letter with your letterhead at the top,” Mark says, adding that “the only difference is that one form of communications seems to be more flippant than the other.”
It’s not hard to seen then, why some firms may want to steer their attorneys clear of text and chat messaging altogether. “I think what many law firms are afraid of, especially large law firms, is that lawyers tend to be more casual over text messages, and they are terrified those text messages might show up in a malpractice lawsuit,” Mark says.
The good thing, however, is that few, if any, expect non-email communication channels to completely replace email anytime soon. But they’re not going away either. And while some of these channels, such as texting, have been around for years, Flournoy notes that they’re fairly new to legal practices.
As these tools continue proliferate in legal, she believes that it may be time for “more educational opportunities around when or when not to use texting, when it’s appropriate and not appropriate.” After all, as with any technology, there’s a lot of catching up to do. “I think the interesting point of this, is maybe it’s time we start talking about it.”
