Text Messaging Is a Potential Malpractice Minefield

Can you give good legal advice in 90 seconds or less?

With in-person meetings on hold, it may be tempting to use text messaging as a quick and easy way to communicate with your clients.

Better be careful. The informality of texting can be a risk management minefield.

“Text messages which are usually informal, easily taken out of context, and written in ‘text speak,’ could come back to haunt you,” writes attorney Amy Terwilleger in this article for Attorney at Work. “On the flip side, if it is the only place you are documenting advice to your client, it may not be in your files when you need it.”

Another danger: text senders expect a speedy reply – no more than 90 seconds, according to some studies – which is hardly enough time to formulate a reasoned, cogent response.

“If a client texts you seeking substantive advice, respond that you will follow up via email, memo or letter,” writes Terwilleger, who represents lawyers in malpractice cases. “In your response, make sure to include a summary of the text from the client. Follow up your written advice with a phone call if necessary.”

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Here are four other potential risk management traps – and tips for avoiding them, courtesy of Terwilleger and Attorney at Work (all quotes are from her article):

Deadlines

  • “For each and every case on which you are counsel of record, check the court’s updates on how cases are being handled. Then check that judge’s divisional instructions. Where things are ambiguous, immediately file motions to extend any deadlines you are not able to reasonably meet. Do not assume that there is an automatic stay of deadlines.”
  • “Many courts are moving to remote hearings. Find out what technology your courts are using and work with your IT departments immediately to get that technology up and running. Do not wait until the day of your hearing to test it out.”
  • “Do not assume someone else on your team is handling calendaring or calculating deadlines. You have to assume that everyone is as anxious and distracted as you are, even your usually stellar docketing team. The buck stops with you. Check your deadlines, check your docketing and calendaring to make sure everything is correct, and then recheck all deadlines weekly as things are likely going to be a moving target for the foreseeable future.”

Client Relations

  • “Check in with your clients to see how they want you to proceed with their representation. For example, a case which does not need to be aggressively litigated at this time might lend itself to being put on the back burner (as long as all deadlines are extended by the court, as per my previous tip) to allow the client to focus on their other business needs.”
  • “See if there are any changes in law or practice relating to COVID-19 that may affect your client’s interests. Keep up-to-date on evolving issues.”

Distractions

  • “Avoid multitasking. It is not effective and it will lead to mistakes. If you need to spend time with your children or other family members, do it. Try to come back to your work when your kids are occupied or sleeping. Get deadlines extended if you simply cannot get the work done.”
  • “Turn off the TV. Everyone thinks that they are able to do document review or research with mindless TV on in the background. It is not true. If you are doing that, you are likely to miss something important. It is not fair to your clients to give less than 100 percent of your attention to the work you are doing.”

Professionalism

  • “Be extra nice to judicial assistants, court staff, and your own staff and team. Nobody has all the answers and things are constantly evolving. Be patient. Be kind.”
  • “Now is not the time to take a hardline stance with opposing counsel. You don’t know what they are dealing with. If they ask for reasonable accommodations, agree. Most of our cases are not a matter of life and death. But, for some people, the coronavirus is.”

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