Lawyers and Texting: Part III

Ethics Corner Article

Editor’s Note: This is part III of an ongoing series of Ethics Corner articles called “Lawyers and Texting” addressing this new method of communication, which brings with it ethical concerns regarding the New Hampshire Rules of Professional Conduct (“Rules”). To read Part I, see the June 19, 2019 issue of Bar News at www.nhbar.org/publications or at https://www.nhbar.org/category/resources/ethics/ethics-corner-practical-ethics-articles/ . Stay tuned for additional articles in upcoming issues of Bar News.

 Part III: Texting and File Retention

Question:

About two years ago, I began using text messaging as a convenient way to communicate with my clients. I am about to replace my cell phone; do I have a professional obligation to preserve the client-related text messages stored on my old phone?

Answer:

Client communications transmitted via text message are likely to be considered documents^[1]  relating to a client representation that must be safeguarded and included in the client file. Restatement (Third) of The Law Governing Lawyers § 46(1) (2000) (hereinafter “Restatement”). The Restatement view further provides that for as “long as a lawyer has custody of [client] documents, the lawyer must take reasonable steps in arrangements for storing, using, destroying, or transferring them.” Id. § 46 cmt. (b). Additionally, clients may, at any time, request to inspect their client file or take delivery of originals and copies of documents related to their representation. Id. § 46(3); see also N.H. R. Prof. Cond. 1.4(a)(4); 1.15(a); and 1.16(d). Indeed, should a client request information from counsel that is only available in a series of text messages stored on the attorney’s mobile phone, the client is, nevertheless, entitled to that information and the attorney must promptly produce it. E.g., N.H. R. Prof. Cond. 1.4(a)(4); Restatement § 46(2); and Richmond’s Case, 153 N.H. 729, 740 (2006) (Discipline appropriate where attorney failed to promptly comply with the client’s requests for information and documents related to the client’s representation).

Model Rule 1.15 imposes upon attorneys a duty to safeguard client property. Importantly, the client file may be regarded as part of the client’s property, and subject to Rule 1.15(a), which provides in part that “[a]ll client and third party property shall be identified as such and appropriately safeguarded.”

In addition, Rule 1.16(d) provides that upon termination of representation, an attorney must take steps to the extent reasonably practicable to protect the client’s interests, including surrendering papers and property to which the client is entitled. It is generally understood that the client’s file belongs to the client and that the client is entitled to obtain the file upon request. E.g., Averill v. Cox, 145 N.H. 328 (2000); N.H. Ethics Committee, Advisory Op. 2015-16/5 (2015).  Although the Model Rules do not define the terms “client file” and “papers and property to which the client is entitled” materials maintained in electronic format are generally considered to be part of the client file, and subject to retention and turnover requirements to the same extent as hard-copy documents. N.H. Ethics Committee, Advisory Op. 2005-06/3 (2005).

Due to their transient and temporary nature, text messages pose special challenges to file retention. Attorneys using or planning to use text messaging for client communication should consider developing formal policies and procedures governing the content, use, and retention of those text messages. When developing policies and procedures, attorneys should keep in mind their professional obligations under Rule 1.1, to maintain sufficient knowledge and skill with the mobile telephone and texting technologies they choose to use to communicate with their clients. See N.H. R. Prof. Cond. 1.1 cmt. (8). Policies and procedures governing text messaging should also provide for the protection of confidential client information, the security of the mobile telephones and software platforms used to send, receive, and store client text messages, and the extent to which those messages may communicate significant information. See, N.H. R. Prof. Cond. 1.6 cmt. (18) and cmt. (19). Attorneys should also consider updating their communication response policies to include guidelines for promptly responding to all client text messages. See N.H. R. Prof. Cond. 1.4 cmt. (4).

Attorneys may wish to consider investing in technology for the easy retrieval of text messages from their mobile telephones and the conversion of those retrieved text messages into a form easily includable in their clients’ files. There exist several applications and third-party computer programs that can be utilized to convert text messages into a useable format. Also, it is possible, although cumbersome, to take a screenshot of a text message that can be transmitted and saved as a distinct document in the client file. Another alternative may be to prepare a memo summarizing a group of text messages and saving that summary to the file.

Similar to client communications transmitted via traditional methods (e.g., email, facsimile, mail, and courier service), text message communications with clients are likely to be considered documents relating to a client’s representation and to be the property of the client. As such, New Hampshire attorneys must safeguard and include client text messages in the client’s file and be prepared to produce them in a usable form promptly upon a client’s request.

—  By the NHBA Ethics Committee

This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its May 6, 2019 Meeting. The Ethics Committee provides general guidance on the New Hampshire 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.

^[1]. The Restatement defines a document to be safeguarded as any “writing, drawing…, photograph…, or other form of data compilation.” Restatement § 46 cmt. (a).