by Jeanne M. Huey
Clients text, send Facebook messages, and tweet—often expecting an immediate response from you, their lawyer. Yes, client communication has changed, but our duty to keep client confidences has not.
“Confidential Information” is a term of art that includes all information a lawyer learns that relates to a case, both privileged and unprivileged, regardless of how or when it was learned. (Texas Disciplinary Rules of Professional Conduct 1.05). Without the client’s informed consent or implied authorization a lawyer may not reveal “confidential information”. Remember this definition and that information can be “confidential” as to you under the Rules even if the whole world knows it.
Email has been the primary form of client communication for years, but in some cases the use of unencrypted email presents an unacceptable risk that client confidences will be revealed; sensitive communications may need to take place over encrypted email or another secure medium. (ABA Formal Opinion 477). Other circumstances such as the use of public computers or a client’s work email address pose different risks, and in those cases a lawyer should advise the client about those risks and protect against them.
An even greater risk in the digital age is letting the need for speed override the need for care. Lawyers get paid to think, and our disciplinary rules require that we promptly comply with reasonable requests and keep our clients reasonably informed. (Rule 1.03). Client complaints about the speed and frequency of communications often form the basis of ethics grievances, so while it may be tempting to keep the client happy by immediately responding to every text, you should bear in mind that not every form of communication is appropriate to every kind of content. Critical communications should be in a form that can be preserved and tracked. Before responding, consider whether you can adequately communicate a complex subject in the client’s chosen medium.
Take steps from the outset to manage the client’s expectations about the speed, security, and form of lawyer/client communications. Let the client know in your fee agreement that because of security and record keeping purposes you use only certain forms of communication, that you will take time to give important advice, and that they should carefully consider the advice you are giving. Consider an automatic response to texts and messages acknowledging receipt and explaining that you will be sending a thoughtful response by email. This will also keep you out of the habit of immediately responding before you have had a chance to fulfill your twin obligations under the Rules to provide good legal advice and communicate that advice with enough detail to permit the client to make an informed decision.
We also live in an era of self-promotion. Marketing experts urge us to post early and often. This makes it all too easy to forget that we have obligations most businesses do not. For example, the Texas Committee on Professional Ethics recently issued an advisory opinion that focused on the duty to keep client confidences when responding to a client’s negative review online. In that situation the committee held that a lawyer can only respond with a “proportional and restrained response that does not reveal any confidential information.” (Opinion 662). In other words, because of the duty of confidentiality, you cannot defend yourself online; any substantive response would likely reveal confidential client information.
Lawyers are also responsible for their social media use and management. You may have a marketing department, social media director or outside consultant who does this work for you—but whether it is a Facebook update, a series of tweets or your LinkedIn profile you, the lawyer, are responsible for its content. Keep client confidences on social media sites by limiting any personally identifiable and client-related information in posts. If clients follow you, then know, set, and monitor privacy settings of the social media platforms you use to limit access to personally identifiable information about your followers. This is especially true of information available to advertisers who may target a lawyer’s followers as needing law related goods or services.
In the digital world of speed and self-promotion, it is easy to forget that our duty to keep client confidences comes first. Keeping the issues raised in this article in mind will help protect you from some of the potential pitfalls that come with practicing law in the digital age.
Jeanne M. Huey is a partner at Hunt Huey PLLC and can be contacted at firstname.lastname@example.org