Lawyers & Texting: Part II

Ethics Corner Article

Part II: Confidentiality and Privilege (Waivers)

Dear Ethics Committee:

I recently started representing a young woman who was arrested on a DUI charge. She texted me and asked me when her arraignment was and what she could expect at that hearing. I sent her an email back reminding her of the time and briefly explained what would happen. Later that day, she called me at my office very distraught. She said that her mother had seen my response because they share a computer and had read the email. I think I have straightened things out with my client, but what should I do to avoid this in the future?

        Answer: You have to balance many things when being responsive to clients: your obligations to promptly communicate with them (N.H. R. of Prof. Cond. R. 1.4), your obligation to maintain confidentiality (N.H. R. of Prof. Cond. R. 1.6), your obligation to stay abreast of the risks and benefits of technology (N.H. R. of Prof. Cond. R. 1.1) and the importance of maintaining the attorney-client privilege.

In recent years, there has been an explosion of new ways to communicate with clients. These include conference calls, emails, video conferencing, and text messaging. Regardless of the form of communication, you should always focus on maintaining the confidentiality of your client’s information and the communication.

You should carefully consider how you communicate with your clients and how they communicate with you. At your initial client consultation, you might consider discussing how to communicate with a new client and what type of information will be shared in what forms of communication. For instance, some information might be best communicated in an email, other information in a letter, and some information might be appropriate for a text message. You should discuss and be aware of your client’s circumstances and how those circumstances might impact your ability to confidentially communicate. You should discuss the risks and benefits of the various forms of communication so that the client can make informed choices in how the communications will occur.

One thing to remember is that certain devices have settings which may increase or decrease the likelihood of a confidential communication being disclosed to a third party. Competence and Communication Rules, a recent Ethics Corner, has a discussion of this issue.

If you plan on using email in your communications, you might want to discuss who might have access to your client’s email and what devices can access those email accounts. Some people share devices with stored login information so that they do not have to enter that information each time they want to access their email. You should discuss what this might mean for the confidentiality of your communications.

Depending on the circumstances, you might suggest that the client create a new email account to ensure that no third party has access to your communications and that the client be careful with that login information. Sometimes family members or significant others want to be involved in communications and kept informed as a matters progress.

You should always remind clients that involving a third party puts the attorney-client privilege at risk, destroying it if that third party is not necessary for the communications between you and your client. See Prof. Fire Fighters of N.H. v. N.H. Local Gov’t Ctr., 163 N.H. 613, 615 (2012)(discussing when reasonable precautions must be taken to maintain attorney-client privilege); N.H. R. of Evid. R. 502(a)(5).

Lastly, you might remind clients to be careful with their devices, as the client in your question might inadvertently waive privilege by not exercising the appropriate care. Technology has enabled you to better serve your clients’ needs and keep them informed. But, you should always remember the risks that go along with those benefits.

— The NHBA Ethics Committee

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 the Ethics Committee Staff Liaison.