I have to admit that I was not an early adopter of text messaging (SMS) or instant messaging (IM) as I initially viewed both tools as something of a novelty.  How times have changed.  Today, the number of text messages sent monthly in the United States is in the neighborhood of 20 billion, and I certainly do my part to take the number that high thanks to my ever present Blackberry.  Reasonable minds will disagree as to whether the ability to send a text or instant message is a good thing; but either way, both methods of communication are now commonplace and here to stay.  Why does this matter?  It matters because failing to understand and adjust to our ever changing communication practices can lead to unforeseen headaches and I’m not just thinking about security concerns or maintaining confidentiality.

More and more attorneys and clients are communicating via IM or text message as information can be obtained, advice shared and decisions made on the go 24/7.  In part, this is because mobility and increased productivity are viewed as good things.  Is this perception warranted?  In most instances yes, as long as you have addressed the security and confidentiality piece and also thought about record retention, which is my concern.

When it comes to email, attorneys are maintaining records in either paper or digital form.  However, as communication practices move toward IM and texting, far fewer seem to be giving much thought to maintaining a record of these communications.  This can be a problem as certainly some of these messages should be preserved as part of the client file.  This would be particularly true when a substantive legal discussion has occurred via IM or text message.  Taking this one step further, have you thought about text and instant messages as potential sources of evidence?  Electronic evidence will become the norm as there is simply too much information there to overlook.  Given all this, I would recommend that every firm define appropriate use of text and instant messaging as well as clarify how such messages should be managed, captured, and retrieved as part of the firm’s overall records retention policy.

Currently archiving text messages can be a challenge.  The best approach would be to check the options with your service provider and speak with your IT consultant for advice.  Your service provider may provide such a service and products are starting to come to market that address this need.  In fact, one approach allows you to forward text messages to a commercial SMS archive provider, but understand there may be a fee each time you do so as the text message is going to go to an out-of-network number.  In the interim, perhaps develop a firm-wide policy regarding how text messaging should and should not be used by attorneys and staff day to day and at the very least place a note in the client file regarding any substantive SMS exchanges.  Also be aware that service providers do not maintain SMS records for very long.  If preservation is a significant concern, get a subpoena out to the cell company as quickly as possible because the window of opportunity is a scant 72 hours. 

IM archiving is somewhat easier to accomplish as there are a number of products on the market that provide archiving capabilities and they also often have additional security features included.  Again, your IT consultant is perhaps best positioned to advise you as to how to address the concern.

The point here is not to suggest that embracing the latest and greatest in tech in this mobile, fast-paced, multitasking world in which we live is bad.  I am simply advocating that a decision to move forward in utilizing a new tech product or service should be based on more than just the productivity or convenience factor.  File documentation, confidentiality, and data security are issues that must also be factored into any decision.  This is the only way to stay ahead in the game because sooner or later advice will be shared in a text message and acted upon by the client in an unforeseen manner.  In the absence of a record, you may have a real problem on your hands. 

In closing I would like to refer back to my comment above where I stated that mobility and increased productivity are a good thing in most instances.  Too much of a good thing can be a problem in and of itself.  What’s my point?  Turn off the Blackberry from time to time.  Dinner with the family or that all too rare vacation are examples of personal time that should almost always be free of client interruption.  We all need time to nurture personal relationships and re-energize.  If this is a problem for you, it’s time to rethink how you are managing your client relationships; because long-term, it isn’t going to work.