Management Assistance Program
Text Messaging for Lawyers
By Jim Calloway
Text messaging (or texting) is one of the technology advances that has impacted how most people interact with each other. Like many consumer technology tools, texting can be a time waster, but sometimes it is the absolute perfect tool. When you’re running late for a social meeting, a quick text of “OTW” or “B there in 5 min” relieves stress for both parties.
My personal opinion on text messaging for lawyers has evolved over the years from “Avoid it. Too hard to document. Who knows about security?” to “Well, everyone is doing it, so you have to manage it somehow” to “Emerging texting tools make this a much better communication tool.”
Like so many technology-based tools, today’s lawyer has to deal with text messaging. So, let’s discuss how lawyers and law firms can deal with texting.
There are a lot of positives to text messaging as a business tool. It’s easy. It’s personal. It’s immediate. There’s an extremely strong likelihood the recipient reads your communication.
The negatives are the other side of the same features. Because texting is so easy and immediate, it is often intrusive. Most lawyers are now well-versed in dealing with email on their smartphones, but the buzz or bing of an incoming text is a greater interruption than deciding to check your email. Some clients may use text messages to their lawyer in an inappropriate way that negatively impacts the lawyer’s life.
So, before we get into some more important technical aspects of text messaging for lawyers (and a really nice texting tool or two), we should appreciate that text messaging is a very limited communications method. It works great for letting someone know you’re running five minutes late for your luncheon meeting or passing on a quick congratulations or kudos to someone.
Think of the most distracted time you have ever received a text message. By now most of us have received a text message, quickly glanced at it and only later figured out we misunderstood the message, or it was from a different person with the same first name. With text messages there is a risk you are advising your client in a bowling alley, a bar or on a first date.
As convenient as texting is, it is very limited and is a poor tool for almost every complex legal discussion. One needs to learn to use the medium’s strengths and to avoid its weaknesses. That means lawyers will sometimes be forced to decline or defer some text message conversations, but our ethical guidelines indicate we must respond to client inquiries. Here are some suggestions for a polite but clear response:
- Don’t do that! Call me to discuss why.
- That’s too complicated to discuss via text message. Call my office to schedule an appointment.
- That’s an important strategic decision. We need to discuss in person.
The above examples may sound like you are putting off your client, and while that is true to some extent, it provides the immediate responsiveness many clients crave today without the potential problem of discussing complicated matters via a channel that tends to dangerously oversimplify complex communication.
Certain areas of substantive law, like possible mergers or acquisitions or other topics related to securities law, likely mean your text messages should be friendly but very limited in scope. In fact, you probably need to discuss this challenge with new clients during the engagement process.
With a criminal defense engagement, I suggest you explain to the client that texting should be limited to scheduling and appointments. A good way to phrase it may be to say, “Never discuss what happened that caused you to be arrested with anyone besides your lawyer. Even discussing those events with me should be in person or on the phone – never by text message or email. People go to jail for writing out confessions on electronic devices.” With a defense matter, I am most concerned about the message residing on the client’s phone than an interception. People tend to handle their phones very casually, sometimes sharing their lock codes, and some people do snoop through other’s personal business on a phone if they have the opportunity.
Let’s be clear. Despite the concerns noted above, almost all lawyers are texting now and almost all lawyers have more business-related text messages in their future. The tool is powerful and ubiquitous.
Lawyers, due to our cautious natures and training, might be less likely to commit text messaging errors than most of our clients. It is incumbent with each new client engagement that the lawyer takes the time to discuss all possible challenges with all forms of digital communication including text messaging and email.
ARE TEXT MESSAGES SECURE?
The original and very common format of text messages is SMS (short message service). These are not encrypted and theoretically could be intercepted. Your mobile carrier retains SMS records including the metadata of who you texted. One of Edward Snowden’s exposures of U.S. intelligence operations was that the national security agency collected this data.
Is email more secure than SMS? You can read contradictory opinions on this, but I believe that SMS text messages are more secure than emails for a variety of reasons, including that email is currently a more common target for attack and many emails are often stored locally on several different devices. Email messages tend to contain more information that is valuable for wrongdoers as well. Just for the record, being more secure than unencrypted email is faint praise.
Lawyers seeking a truly secure option need to understand encrypted text messaging.
Before we move on, it is important to note that phone security is compromised when someone else has access to your phone and access code. So, handing your phone to someone after unlocking it means you are confident they will only access what you intended. This may be a judgment on the person’s integrity or just paying attention as they use your phone, but being a lawyer is now a good reason to decline to let your phone out of your possession. If you’re going to frequently text clients, then the message preview feature of your phone should also be set so the content of the messages is not displayed on the lock screen.
Phone lock codes are not required by the Oklahoma Rules of Professional Conduct, but common sense dictates that a lawyer should set up the lock code so someone cannot pick up their phone and use it, especially if there is any client information on the phone.
iPhone texting is more secure than SMS. This is because of iMessage encryption, which means it only applies to messaging between iPhones, iPads and Macs. As I have noted before, encryption is demonstrated by the “blue bubble” in iMessage where the “green bubble” means it was not encrypted, normally because it was not received by an “i device.” It is true that a device being off-line or on the edge of a cell tower may result in a message being stepped down to SMS and not being encrypted, so it is not 100 percent. Generally, these will be encrypted.
WHATSAPP AND SIGNAL: END-TO-END ENCRYPTION TOOLS
The great thing about end-to-end encryption tools is that they are strong, safe and secure.
The challenge is they only work if the person you wish to communicate with agrees to install and use the app for that particular tool.
WhatsApp is one such tool, and the company’s website carries a strong message about security, “From day one, we built WhatsApp to help you stay in touch with friends, share vital information during natural disasters, reconnect with separated families, or seek a better life. Some of your most personal moments are shared with WhatsApp, which is why we built end-to-end encryption into our app. When end-to-end encrypted, your messages, photos, videos, voice messages, documents, and calls are secured from falling into the wrong hands.”
As you can note, WhatsApp encrypts more than just text messages. WhatsApp is owned by Facebook, which will be a concern for some.
Signal Private Messenger is perhaps the best-known messaging encryption tool and can be used to send “group, text, voice, video, document, and picture messages anywhere in the world without SMS.” It has been endorsed by some well-known security experts and privacy lawyers. Wired magazine published an article in late 2017 saying everyone should be using it. Again, the challenge is getting others to download and use the app. It is free to use, as is WhatsApp.
The best solution may be enterprise texting, a business tool that is not free but provides many useful features. I’m only going to cover ZipWhip. It is a leading tool, and the corporate offices let me test drive the service for a substantial time, so I could get a good idea of how it operates.
ZipWhip enables texting fro your existing business phone number. It doesn’t use your business phone line but displays that number to those who receive a text message from the lawyer via ZipWhip. The reality of how people use communication tools today means that many of us do not want to widely share our mobile phone numbers. With ZipWhip you can install an app on your phone, so you can use ZipWhip to text from your phone as you normally would – but without sharing a mobile phone number.
The service gives you a text inbox that’s available online or in the various apps it supports. That addresses one of the other concerns with lawyers and text messaging – that the messages will not be appropriately saved in the client file. Those who follow the ZipWhip inbox can see all the text conversations that have taken place using the tool, and they can be easily saved to the client file.
Searching, scheduled messages, SMS, MMS and automatic text replies are just a few of the features available. Review all the features at www.zipwhip.com/features. Since those at the office who use ZipWhip can see all text message threads from all attorneys, some special training may be required for staff members who will use it.
Other tools in this class include Sendhub and TextMagic.
Here’s another commonly asked question about text messaging. Can I send a text message from my computer without subscribing to one of these services? The answer is “Yes, by using a technique called Email-to-SMS Gateway.” Hong Dao of the Oregon State Bar Professional Liability Fund wrote about this on their blog. The link is bit.ly/emailtexts.
Like email, communicating by text message, aka texting, is likely going to be with us for a while. It is incredibly convenient and a time-saving tool, which is why it is so popular and widely used.
As is true of many things related to the legal representation of clients concerning their confidential business and private matters, we – as members of the legal profession – have to look beyond the convenience factor to ensure we are not compromising our clients’ interests or our own personal and professional interests by thoughtless use of text messaging communication by the lawyer or the clients.
ABOUT THE AUTHOR
Jim Calloway is the director of the OBA Management Assistance Program. He served as chair of the 2005 ABA TECHSHOW board. His Law Practice Tips blog and Digital Edge podcast cover technology and management issues. He speaks frequently on law office management, legal technology, ethics and business operations.
Originally published in the Oklahoma Bar Journal — May, 2019 — Vol. 90, No. 5