United States: What's Wrong With Lawyers Using Instant Messaging?

Last Updated: April 2 2019
Article by Carmen Wong


This article was published in Hong Kong Lawyer (March 2019).

Instant messaging is increasingly penetrating the workplace, and law firms are no exception. A recent study estimates that nearly 70% of employees use smartphones for business, and that, of those, 73% use instant messaging apps installed on their phones for that purpose.

Whilst it may be unsurprising that instant messaging has become the top communication tool for employees using their smartphones for business, significantly outstripping the use of smartphones for emails (66%) and voice calls (58%),1 what is probably less well known is that, whilst one of the leading messaging app provides end-to-end encryption, ensuring that only the sender and receiver can read the message and not third parties, with some other popular messaging apps, it is either only optional, or not available at all.

The prevalent use of instant messaging apps brings new legal, professional conduct and security challenges to lawyers and law firms that are significant and worthy of attention.

Professional conduct

Rule 1.07 of the Hong Kong Solicitors' Guide to Professional Conduct (the "Guide") requires lawyers using "information communication technology", including instant messaging tools, to ensure that such use is in compliance with the Guide, Practice Directions and all applicable law.

Confidentiality risks

Maintaining confidentiality is obviously a key requirement for all lawyers. Instant messaging can however very easily lead to the inadvertent disclosure of confidential and/or privileged information to third parties. For instance, when a messaging app is installed, it may request access to the phone's contact list to enable it to import the entire list straight onto the servers of the messaging app.

A lawyer using the app may therefore have shared his or her clients' personal data with third parties without even knowing it, which is obviously problematic. The risk of this happening is even greater, of course, if the phone was provided by the law firm and contains an individual lawyer's client list.

Privilege risks

In this fast-moving digital age, clients increasingly expect to be able to contact their lawyers at all hours of the day, wherever they are, and via a communication channel of their choice. For example, PRC clients will often wish to communicate with their lawyers via one of the most popular PRC messaging apps. Lawyers should, however, be aware that end-to-end encryption is not available for messages on that app. To the contrary, all conversations and posts on its social media platform are expressly susceptible to use as evidence in PRC courts. It follows that if clients insist on using such app to discuss their business, including potential or existing litigation, it could mean that any privilege attached to those conversations has been waived.

To preserve confidentiality and privilege, it may be prudent to consider adopting a strict protocol, such as never communicating with clients about a case via instant messaging, so that the lawyer's ability to communicate and strategize confidentially with clients is left intact.

Record retention risks

Law firms should review internal policies to determine how best to handle the departure of lawyers, particularly in the context of mobile devices and data management. Law firms should be mindful that when lawyers leave a law firm, the conversations and work documents stored on their mobile devices are likely to move with them.

For that reason, firms need to consider having a backup system in place to archive work-related materials stored on personal devices. Otherwise, documents and conversations may be lost when lawyers leave the firm, which could be a serious issue if they leave to work for a competing law firm.

Discovery risks for clients

Lawyers should also be reminded of their obligation to advise clients on what is expected of them with respect to discovery in litigation. While some of the more popular messaging apps do not store user messages on their servers, and can at most handover metadata to a Court or to the police, clients can opt to back up their messages on the cloud. It can however be difficult, if not impossible, to ascertain where the cloud servers are located, as well as the level of data protection provided to these back up messages. The practical reality is that, even though the messages may not be stored on the servers of a messaging app, the messages backed up by clients could still be subject to discovery in Hong Kong litigation, similar to other electronic records such as emails.

Mitigating the risks

To mitigate the risks associated with the use of instant messaging apps, lawyers and law firms need to be proactive. The first step is to assess a firm's exposure to the risks involved, taking into account its existing security policies and what devices are used by people in the firm (for example computers, tablets, mobile phones, and flash drives). The process involves determining what safeguards are in place, which areas need enhanced security measures, and whether a messaging app is the right communication tool for the practice in question.

Supervision is likely to be a significant challenge for many law firms. It can prove difficult, especially for smaller firms, to supervise and/or monitor all lawyers' business communications via a third party messaging app.

Instant messaging management technology, such as Mobile Device Management (MDM) and/or Mobile Application Management (MAM), enables management to monitor the use of instant messaging, block content in compliance with policy, retain and store messages, and detect viruses, among other features.

This technology gives law firms control, while allowing legal and non-legal staff to communicate with external parties via instant messaging apps. Law firms should consider whether it is cost-effective to adopt such technology if they have not already done so.

Secondly, law firms should also review internal IT policies. If the risks associated with using instant messaging are not adequately addressed, update your policies. Some suggested updates include:

  • limiting (or even prohibiting) the type of documents that staff are allowed to send on the instant messaging app;
  • defining appropriate use of instant messaging both in the workplace and in client communications;
  • installing location tracking devices on all technology devices;
  • setting up devices so they can be wiped clean remotely in case they are lost or stolen; and
  • identifying the scope and type of monitoring on instant messaging apps to be conducted by your firm.

Depending on the size of the law firm, it may also be beneficial to look into the option of the firm setting up its own enterprise-grade messaging app. Some of the key benefits of this include device-to-device encryption with unique keys so that messages and data are protected during transmission, secure cloud-based storage, and giving the firm total control and management over all data and ensuring that no outside parties have access to such data.

Finally, firms should educate all their legal and non-legal staff on best practices for communicating in the digital world, ensuring that all staff will follow basic rules on usage, content and record retention. Staff, especially lawyers, are likely to use the messaging apps more sensibly if they understand the risks involved.


1 Pathfinder Report: Growing Use of Consumer Messaging Apps Exposes Organizations to Privacy, Compliance and Security Risks, October 2017.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
22 May 2019, Other, Sao Paulo, Brazil

Please join Orrick at ACIs 9th Brazil Summit on Anti-Corruption taking place May 22-23 at the InterContinental Hotel in So Paulo, where Orrick partners Billy Jacobson and Guy Singer will be presenting.

22 May 2019, Seminar, Hong Kong, China

Drafting a Limited Liability Company (LLC) agreement is not always straightforward. To ensure that clients needs are met, you need careful planning: tax matters, succession, management issues among others.

29 May 2019, Seminar, New York, United States

Details for this Orrick Library Seminar Series event are available in Japanese: JCAAɂ钇ًK̉E3‚̋K̃|Cg

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaqs use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributors own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaqs Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaqs Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaqs right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions