Learn best practices for texting clients ethically—covering consent, security, recordkeeping, confidentiality, and boundaries—so lawyers can offer convenient communication while protecting professionalism and compliance.
Obtain client consent, define boundaries for texting, and establish what topics should (and should not) be handled via text.
Use encrypted, legal-specific platforms with automatic archiving to protect confidentiality and maintain a complete client file.
Limit texting to administrative updates, respond promptly but appropriately, and regularly update policies to stay compliant and ethical.
This article is part of our Counsel Corner series, where we invite thought leaders and legal professionals to share their perspectives on the issues shaping the practice of law today.
Our guest author is Mark C. Palmer, Chief Counsel at the Illinois Supreme Court Commission on Professionalism. Mark brings a wealth of insight into legal ethics, civility, and professional development in the legal field.
In today's fast-paced legal environment, the demand for texting as a primary means of communication between lawyers and clients is no surprise. Many clients expect the convenience and immediacy that text messaging offers, and firms that accommodate may benefit from increased client satisfaction and engagement.
But as with any form of communication, especially one as casual and potentially unsecured as texting, lawyers must tread carefully. Texts sent in haste or without proper protections could risk violating ethical duties related to client confidentiality, communication, and documentation. To stay on the right side of the American Bar Association's Rules of Professional Conduct, attorneys should take deliberate action both before and during any client text exchanges.
This guide offers practical advice on what lawyers should do before texting with clients and how to protect themselves and their clients when utilizing text messaging correctly.
The first step is putting ethically appropriate policies and protections in place from the outset. That means you shouldn't send your first text until you've addressed consent, communication boundaries, security, and documentation procedures.
One of the most important initial steps is obtaining informed client consent for text messaging. The consent should be in writing, ideally incorporated into your engagement or retainer agreement.
Inform your client of the firm's policy around texting, including the types of messages that will be communicated via text (e.g., reminders or schedule updates), the kinds that won't (e.g., legal advice or confidential documents), and how quickly they can expect a response (e.g., during business hours only or 24/7 access).
This helps set client expectations and satisfies your ethical requirement under ABA Model Rule 1.6(a), which forbids disclosure of information relating to the representation of a client without informed consent.
Setting these parameters from the start can prevent misunderstandings about the appropriate use and limitations of text communication.
Confirm any communication platform you use meets your obligations under Model Rule 1.6(c), which requires lawyers to take "reasonable efforts" to prevent unauthorized access to or disclosure of client information.
Using standard SMS on a personal device carries a significant risk. These messages are not end-to-end encrypted and may be stored on unsecured networks or visible on multiple synced devices.
Instead, opt for encrypted, legal-specific communication tools that offer secure messaging features and automatic archiving.
Many legal practice management platforms now include built-in messaging systems that maintain confidentiality and seamlessly integrate texts into the case file. This protects client data and also ensures compliance with your duties to appropriately manage documentation.
The clients get the convenience of quick communication when needed, while you can serve their needs with ethical assurances (and all without sharing your personal cell number).
Texting from personal phones should be avoided unless the device is secured and the messages can be automatically archived. Text messages are part of the client file and must be preserved like any other communication. Model Rule 1.0(n) makes clear that "writings" include electronic records.
Failing to capture these messages risks creating an incomplete client file. Screenshots and manual logging are unreliable and unsustainable over time. To streamline this, use platforms with automatic message archiving, or regularly back up chats via export tools integrated into your case management system. Automation is key.
Under Rule 1.15 and Rule 1.16(d), lawyers must safeguard client files and provide them when called upon. If significant parts of your client communication are buried in scattered texts across multiple devices, you're putting the client's interests and your liability at risk.
Along with security and recordkeeping, lawyers must consider the practical and ethical implications of the boundaries they set with clients. While texting can enhance client service, it can also blur the lines between professional and personal time. Therefore, it's critical for lawyers to define and communicate appropriate use early in the engagement.
Setting office hours for responses, indicating what types of issues should be texted versus emailed or discussed in a call, and discouraging late-night or weekend texting unless previously arranged or it is a legitimate emergency, all help preserve professionalism and well-being on both sides of the attorney-client relationship.
This approach is supported by Rule 1.4, which requires lawyers to keep clients reasonably informed about their matter and to explain issues to the extent necessary for informed decisions.
Once you've implemented clear policies and obtained consent, the next step is to maintain ethical and secure texting practices throughout the representation. The goal is to use text messaging as an efficient, service-oriented communication tool without undermining the confidentiality, professionalism, and documentation requirements of your legal obligations.
At the core of texting ethically is a focus on protecting client confidentiality. Even secure tools can be compromised if used carelessly.
For instance, Apple users can unknowingly expose private messages via "message echoing," where texts sent from an iPhone also appear on other synced devices like a MacBook or iPad left open on a desk. Other common risks include notifications or previews appearing across devices used by family members or coworkers.
Disabling message previews is a simple but critical step in preventing inadvertent disclosure. Lawyers should enable this protection themselves and advise their clients to do the same.
Secure messaging platforms can help mitigate these risks by encrypting all messages and restricting visibility to devices explicitly authorized by the user. Applications like Signal, WhatsApp, or integrated messaging tools within law firm portals offer a better solution than standard SMS or social media messengers.
However, encryption alone isn't enough. Lawyers must also take care to ensure that substantive legal discussions don't happen over text unless the platform is properly integrated into the client file.
Lawyers should develop a habit of reserving texting for administrative or logistical matters, such as meeting reminders, billing notifications, or confirming receipt of documents. These messages are generally safe and improve client satisfaction without introducing significant legal risk.
On the other hand, any conversation involving legal advice, case strategy, or evaluation of evidence should happen over more appropriate channels like secure email, phone calls, or client portals. This practice aligns with Rule 1.4(b), which requires lawyers to explain matters sufficiently to permit clients to make informed decisions. Text messages are often too brief and informal to meet this standard, especially when dealing with complex or nuanced issues.
Responding promptly is still crucial. When clients text outside of business hours or attempt to raise complicated matters via message, a quick note acknowledging the message and stating when and how you will respond more fully can go a long way toward managing expectations and maintaining client trust. Responsiveness remains a key part of ethical communication under Rules 1.3 and 1.4(a).
Finally, it's important to regularly review and update your texting policies. Technology evolves, court rules change, and new threats to data security emerge. Evaluate the tools your firm uses and revise your policies accordingly, at least on an annual basis. This also reinforces the competence requirement under Rule 1.1, which encompasses staying current with the risks and benefits of relevant technology.
Text messaging is not inherently unprofessional or unethical in a legal context, but it does demand a structured approach. By setting expectations, utilizing the proper applications, limiting the subject matter, and meticulously documenting exchanges, lawyers can integrate texting into client communications while upholding their ethical duties.
Today's clients want convenience, but they also want competent and trustworthy legal representation. Proactively establishing guidelines around text messaging allows lawyers to provide modern, responsive service without compromising their duties. The result is a better experience for clients, increased efficiency for lawyers, and a strong ethical foundation for communications in the digital age.
Learn about how 8am MyCase and other solutions from 8am can help you securely text and communicate with clients.
The Illinois Supreme Court established the Commission on Professionalism under Supreme Court Rule 799 to promote integrity, professionalism, and civility among the lawyers and judges of Illinois, to foster a commitment to the elimination of bias and divisiveness within the legal and judicial systems, and to ensure those systems provide equitable, effective, and efficient resolution of problems for the people of Illinois.
The Commission achieves this mission through professional responsibility CLE, lawyer-to-lawyer mentoring, legal professionalism programming, educational resources, robust communications platforms, and more.
To learn more, visit 2Civility.org and follow on LinkedIn.