Ethics Corner Article
Part I: Competence and Communication Rules
Dear Ethics Committee:
I have been asked by several clients to use text messaging as my main method to communicate with them. My cell phone has texting ability and it is not a huge issue for me to communicate in this way with my clients if that is what they want. However, is this a permissible method of communication under the NH Rules of Professional Conduct?
Answer: You are correct to consult the rules regarding client communication. Rule 1.4 deals specifically with Client Communications, and requires that a lawyer (1) promptly inform the client of any decision or circumstances that requires the client’s informed consent, (2) reasonably consult the client about the means by which their objectives are to be accomplished, (3) keep the client reasonably informed 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. The second part of rule 1.4 focuses on the attorney’s obligation to explain the legal and practical aspects of a matter and, as necessary, to explain the alternative courses of action available to the client. The purpose of this section of the rule is to allow the client to make informed decisions regarding the representation. However, the rule specifies no particular method of communication.
The methods of communication implicate Rule 1.6, which requires that all information relating to the representation of the client be kept confidential, subject to limited exceptions. In addition, the Ethics Committee Comment to Rule 1.1, requires that a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers are similarly using. Finally, the attorney should consider the possibility that privilege might be waived if third parties have access to the text messages on the client’s device. For example, text message notifications that include the names of the sender (if accepting text messages from clients) or notification messages that preview the content of messages should be disabled to ensure that inadvertent disclosure does not occur.
The thrust of these rules is that the attorney should use means of communication consistent with their obligation to maintain the confidentiality of client information, and to ensure the client is reasonably informed of the risks of the various modes of communication the attorney might employ. In the case of text messaging, the attorney may wish to confirm that the client, and only the client, has access to the device. The attorney might also encourage the client to use text messages for only limited purposes, such as scheduling and confirming appointments, in order to avoid risks of disclosure.
Text messaging also implicates issues related to file retention and spoliation. A lawyer must retain client communications as part of the client’s file and text messages are part of the client’s file. Issues related to file retention were discussed in Ethics Committee Advisory Opinion #2015-16/05 (See also an additional 2015 Ethics Corner on Texting and File Retention at: https://www.nhbar.org/resources/ethics/ethics-corner-practical-ethics-articles/2015-12). File retention and spoliation and the application of the rules to text messages will be addressed in additional separate upcoming Ethics Corner articles.
These Ethics Corner articles were submitted for publication to the NHBA Board of Governors at its May 6, 2019 Meeting. The Ethics Committee provides general guidance on the NH Rules of Professional Conduct and publishes brief commentaries in the Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing Robin E. Knippers: firstname.lastname@example.org.