When tax attorney Robert B. Teuber received a text message from a client last year, he was a little shocked.

Not only by the subject matter — an impromptu audit by the IRS — but also by the fact that the client informed him through a text message.

“It seemed as though it was an issue that was slightly more urgent than a text,” Teuber said.

But the Weiss Berzowski  attorney and others have seen this succinct form of communication become more common for day-to-day interaction with clients.

Teuber said while he doesn’t initiate text messaging with clients, he regularly offers his cell phone number to be more accessible.

And in the age of instant communication, he said more clients have taken to texting to get a brief update on their case.

“If I do receive a text, it’s usually something like, ‘how did the meeting go?’” Teuber said.

Milwaukee criminal defense attorney Steven C. McGaver said about one-third of his clients utilize text messaging.

In a crowded room or at a court hearing, he said texting can be a convenient alternative to e-mail or a phone call.

“It’s a quick way to arrange a meeting,” McGaver said. “[And] it’s a lot less imposing than talking on the phone.”

Professionalism problems

But texting is not problem free.

The informal nature of texting can give the wrong impression, cautioned attorney Dean R. Dietrich, chair of the State Bar of Wisconsin’s Professional Ethics Committee.

Dietrich, who rarely texts clients, suggested a regular practice of texting could be viewed as unprofessional on the part of an attorney, especially if it involves sensitive material.
“It can be highly suspect and it just doesn’t look very good,” said Dietrich, of Ruder Ware LLSC in Wausau.

Godfrey & Kahn business attorney Sherry D. Coley said that in her experience, clients who expect constant communication on the go prefer e-mail accessible on their Blackberry or a telephone call.

Milwaukee-based Whyte Hirschboeck Dudek SC even has a firm-wide policy which prohibits attorneys from texting clients.

According to WHD marketing director Sharon Zalewski, the firm implemented the policy because of concerns about retention and retrieval of text messages.

“Until we find a way to do it that we feel comfortable with, we don’t have texting,” she said.

Retention and confidentiality

There are other concerns, including record keeping and privacy issues.

McGaver said that the permanency of records created through texts depends on the cell phone provider and its particular policies of retention.

He recommended making a “hard record” of any texts that might contain confidential or sensitive information.

Dietrich pointed out the potential problem of sending a text to the wrong person and the risk that the intended receiver won’t be the only one who sees the message.

Unlike e-mail or voice messages, which require a password, McGaver noted that anyone with a cell phone can access saved texts.

That’s why Teuber said he never offers any legal advice via a text message.

“I don’t think it’s an effective way to carry on a full conversation,” he said. And it can’t take the place of more formal communication.

“Every single exchange in text messaging ends up with a phone call,” Teuber said.
McGaver, of Gimbel, Reilly, Guerin & Brown LLP, agrees. He will reply to simple texts, but if a client starts asking specific questions about the case, he tells him or her to call.

“Texting is not a way to convey anything sensitive or confidential, but for mundane topics and issues between an attorney and a client, it can be used effectively,” he said.
In fact, given the mundane content and brief nature of texts, it may be possible to dispense with the disclaimers that generally appear at the end of attorneys’ e-mails, said Dietrich.

“I do not see a big problem with the fact that the text message does not have the disclaimer on the bottom,” he said. “It is nice to have that on the message, but not essential.”