Texting has become a critical communication tool in our society and between attorneys and clients. With innovation comes a potential downside—clients want instant responses and around the clock availability. Attorneys who text with their clients must be cognizant of the substantial risks that may arise from these communications and would do well to avoid a scenario as illustrated below. Attorney Hap Less is sued by a disgruntled client for legal malpractice. After Hap provides an unusually thin file, the claims adjuster asks if there are any other records. When his carrier assures Hap that texts are indeed important, he admits he lost his phone at the courthouse and cannot get his prior texts. His cell phone provider advised that the limited retention period for text retrieval has expired. In short, there is no way to get these text messages, unless the client has copies. Hap pays his significant deductible and faces the prospect of increased insurance premiums due to the claim. The above scenario, although fictitious, is illustrative of some of the significant issues that can arise when lawyers opt to give their clients their cell phone numbers.
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