It is incompetent for a lawyer to believe, let alone say or write that “It is illegal [for a lawyer] to text or email anything of substance.” The statement is also completely wrong, legally and ethically.
Yet one lawyer, an ethics “maven” no loss, who writes a column for a major local legal newspaper, actually wrote those completely inaccurate words as part of his lament that – because of COVID-19 – he can no longer work in the same type of law office common in 1973, when he received his law license, you know, when Richard Nixon was President.
The Rules of Ethics require lawyers to provide “competent” representation, which means that they must possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The same Rules of Ethics also say that, in order to be competent, ALL lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
The Rules do not prohibit lawyers from texting or emailing “anything of substance.” Instead, the Rules say that when communicating with or about a client, a “lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” This phrase is generally interpreted to mean that, when necessary, lawyers must secure email or other communications with a password, or use encryption or other security measures.
The lawyer who wrote the column proudly quoted Winston Churchill, who said “never let a good crisis go to waste.” That quote should tell lawyers who weren’t prepared to work remotely from home that the time has come to become competent. The author chose not to glean that lesson and instead proved another quote, “Better to remain silent and be thought a fool than to speak and remove all doubt.”
Lawyers, don’t worry, you can email and text information “of substance,” you just have to do it in a way that protect confidential and sensitive information. That’s why, the lawyers at the Law Offices of Daniel J. Siegel, LLC and the legal technologists at Integrated Technology Services, LLC provide techno-ethical and cybersecurity guidance to lawyers and their entire staff. Give us a call. We are practicing lawyers and paralegals, who actually know and understand our ethical obligations.