February 26, 2021
Picking Up the Slack: Are “Collaboration” Apps Safe for Legal Advice?
BY: Alex MacDonald
Lawyers are a small-c conservative bunch. As a group, they do not like change. (Anyone who doubts it should count how many heretofores and witnesseths survive in “modern” contracts.) So it should come as no surprise that many of them cringe when they encounter new “collaboration” apps like Slack. They hesitate to use these apps at all, let alone employ them for giving legal advice. The very idea strikes them as a mild form of malpractice. Some have even called it the “worst idea” ever.[1]
It would be easy to dismiss this kind of rhetoric as legal Luddism. But in fact, the Luddites have a point. For all its modern bells and whistles, Slack poses unique risks and challenges for in-house counsel. So before you use the app for legal advice, you should understand what you’re getting into.
Let’s start with what Slack is. In a nutshell, it’s a workplace-communication tool. Think of a late-90s chatroom with multiple feeds, or “channels.” Users gather into these channels, each of which covers a specific topic, project, or department. When a user types a message into the channel, all the other users in that channel can see it. Users can also share documents, links, images, GIFs, and nearly any other digital file.
The advantages of this setup are obvious. By giving the whole group access to the same information at the same time, Slack reduces friction. It collates resources, smooths collaboration, and slashes e-mail traffic. In fact, many companies adopting the app see their e-mail volume drop by as much as 40%.[2]
That may be why more and more companies are signing up. Slack reports that it now has seven million users, including workers at three-fourths of the Fortune 100.[3] It also collected $600 million in revenue last year and recently sold itself to Salesforce for $28 billion.[4] That sale will only extend its reach.
For in-house lawyers, the takeaway is that if your clients aren’t using Slack already, they probably soon will. And they’ll probably use it for crucial business conversations. They may even use it to ask for legal advice.
Some lawyers are already adjusting to the new reality. To take one example, Slack’s own in-house team runs its advice-and-counsel process through the app. Using Slack, an internal client can fill out a request form, which automatically alerts someone on the legal team. The client then gets an alert when the legal team looks at the request (signaled with a set of cartoon eyes) and when the team finishes it (signaled with a green check-mark).[5]
Should your team do the same? It’s a harder question than it might seem at first. There’s certainly value in meeting the clients where they work, so to speak. It’s convenient for you and, more important, for the client. However, as corporate counsel, you also have to take account of the risks and there are several.
To start, Slack can cause serious discovery headaches. Most e-discovery platforms weren’t built with Slack in mind. Some can’t process Slack’s data, and others can process it only partially or laboriously. Getting the data isn’t always easy. Depending on how you set up your account, different people may have different access to different channels. Your administrator may have access to public channels, but not private ones. Whoever set the channel up may have the only access. So you may have to work with multiple records custodians to get the information you need. In big cases, that could mean corralling dozens of people just to pull the data.[6]
Worse, even when you get the data, reviewing it can be a pain. Because all conversations in Slack happen in running threads, relevant conversations may interweave with irrelevant ones. These conversations can be near-impossible to disentangle. To sort out irrelevant—or even privileged—information, you have to scroll through the channel’s feed page by page and that can be quite a task. Slack’s default setting is to keep information forever.[7] So unless your company changed the default, you could have millions of messages to review. That could cost you dozens, if not hundreds, of hours (and some hefty legal bills).
These burdens led the court in Milbeck v. TrueCar, Inc.,[8] to find that Slack data was too burdensome to produce in discovery. But that decision shouldn’t comfort you too much. The plaintiffs in Milbeck asked for Slack data only a few months before trial and by then the defendant had no practical way to review and produce so much information—nearly 17 million messages. As Slack becomes more ubiquitous opposing counsel will get more savvy to its value. They’ll start requesting it as a matter of course. So if your company uses Slack, you’re eventually going to be asked to produce it.
Beyond discovery, you also have to worry about privilege. In Slack, any user can add other users to a channel. These users might be people from another department—or even another company (contractors, clients, etc.).[9] That means your audience could expand well after you send a message. If you meant the message to be privileged, you may have a problem. The new person may not qualify for the privilege, or the person sharing the message may have waived it.
Of course, similar risks exist for e-mail. A client can always forward your advice to someone you never meant to read it. Slack’s fluidity and pace exacerbate the risk. People like Slack precisely because it’s informal; and in less formal environments, people tend to be less careful about protecting privileged information.
Worse, even if your clients keep privileged messages to themselves, they might read the messages less carefully. In recent years, psychologists and brain scientists have studied how the digital ecosystem affects our ability to absorb information. Maryanne Wolf, a childhood-reading expert, reviews some of that research in her book, Reader Come Home: The Reading Brain in the Digital Age. She reports that when people read on a screen, they rush through material, pay less attention, and retain fewer details. They also resist challenging concepts and rely more on previously held assumptions. These behaviors, she writes, are all symptoms of “information overload.” Stretched into a state of “constant partial attention,” readers simplify, skim, and triage. They glaze over difficult information, struggle to analyze new concepts, and fumble over unfamiliar ideas.
Some of this, of course, happens whenever we read on a screen. But Slack’s structure only makes things worse. It plugs users into dozens of channels, each updating maybe hundreds of times a day. It feeds them a stream of GIFs, jokes, questions, emojis, and links, all alongside potentially crucial information. Because users skip over much of this torrent, it’s almost inevitable that they’ll eventually miss some key data point.
By now, you may be ready to swear off Slack entirely, but that won’t be an option for all in-house counsel. In-house lawyers are ultimately well-paid support staff; they don’t get to dictate when and how they interact with businesspeople. Those that try are likely to find themselves looking for another gig. So if you’re an in-house lawyer, and your clients use Slack, you probably have to use Slack too. You don’t get to opt out altogether.
You can, however, choose to use Slack judiciously. It’s one thing to make yourself available when and where your clients need you. They expect you to respond on Slack, so you should. It’s another thing to decide how you deliver formal legal advice. Even in the most tech-forward workplace, you’re probably on safe ground reserving that kind of advice for other formats. For example, when a client pings you with an issue on Slack, you can respond, “Great question! Let me look at it and put something together for you.” Then you can follow up with an e-mail, a memo, or if appropriate, a phone call.
Yes, some clients will insist on immediate answers. But they’re the exception. Most will readily understand. They’ll not only forgive the slight delay, but they’ll also respect you for your care and judgment. And even when they insist on an immediate reaction, you can couch your answer. You can say, Here’s what I think right now. Then you can follow up in a more stable format. That way, you can make sure the client receives the advice outside the informational cacophony of Slack.
At bottom, Slack has plenty of things to recommend it, not least of which is that your clients are probably already using it. But as in-house counsel, you still have to be careful about using it for legal advice. Your clients may like Slack’s speed and informality; but sometimes, being a good lawyer means protecting your clients from things they otherwise might like. So while you don’t have to—and probably can’t—swear off Slack entirely, you should think long and hard before using it for formal legal advice. You owe at least that much to your clients.
[1] Miles Buckingham, Slack as a Client Communication Tool: Bad Idea or Worst Idea?, Nemirow Perez Blog (April 12, 2016), https://www.nemirowperez.com/slack-as-a-client-communication-tool-bad-idea-or-worst-idea/.
[2] Logikcull, The Lawyer’s Guide to Discovery and Investigations in Slack: How Slack is Changing Communication and Disrupting Discovery as We Know It 4 (2020) [hereinafter “Logikcull Guide”].
[3] Id. at 3.
[4] Cal Newport, Slack is the Right Tool for the Wrong Way to Work, New Yorker (Dec. 14, 2020), https://www.newyorker.com/culture/cultural-comment/slack-is-the-right-tool-for-the-wrong-way-to-work.
[5] Mark Pike, How We Take Some of the Work out of Legal Work, Slack.com (May 22, 2020), https://slack.com/blog/collaboration/how-slack-legal-uses-slack.
[6] See Logikcull Report, supra note [], at 10–17 (detailing discovery challenges associated with Slack data).
[7] Id. at 12.
[8] No. CV 18-02612-SVW (AGRx), 2019 BL 363115, 2 (C.D. Cal. May 02, 2019).
[9] Slack 101: Understanding Slack for Lawyers and Legal Professionals, Logikcull https://www.logikcull.com/slack/understanding-slack-for-lawyers (last visited Dec. 29, 2020).