The WhatsApp Conundrum

The rise of WhatsApp as a communication tool in the legal industry has sparked a significant conundrum. In some regions, like MENA, WhatsApp is thriving as a business tool—far easier and faster than traditional email. Exchanging documents, IDs, and even closing business deals via WhatsApp has become rampant. But in more regulated environments, like financial institutions and law firms, the reaction has been one of caution, if not outright prohibition.

In a previous life I’ve been on a work compliance call discussing the WhatsApp usage policy, the message was clear: “No business discussions on WhatsApp.” Yet, the boundaries were blurred when colleagues questioned whether it was acceptable to send messages like “I’m off sick” or “Running late for a meeting.” The answers were confusing at best, highlighting a key issue: Where do we draw the line?

The SRA recently noted that many firms lack clearly written WhatsApp usage policies. This absence isn’t surprising—after all, where do you start? What are the larger firms doing? And more importantly, how do we balance the convenience of WhatsApp with the inherent risks it brings?

A Double-Edged Sword?

WhatsApp’s security features—end-to-end encryption, in particular—are often touted as more secure than email. This might be one reason why it has gained traction in legal environments, particularly for client communication. However, this same convenience can become a double-edged sword. Could WhatsApp hinder eDiscovery processes when key information is needed, especially if messages are not systematically saved?

In the MENA region, WhatsApp thrives as a business tool because it’s simply more convenient. But without clear policies, using it carries risks, that are compounded by the lack of guidance on how to properly manage this communication channel in a legal setting.

The SRA's thematic review of firms handling asylum work highlighted a significant gap: the lack of clear, written policies on WhatsApp usage. Many firms hadn’t fully considered the implications of using WhatsApp, particularly on personal devices, which introduces data protection risks and the potential for client exploitation.

A robust WhatsApp policy should clearly define what can and cannot be discussed with clients, how to maintain confidentiality, especially on personal devices, and which documents should not be shared. It should also address how conversations are saved to client files, particularly since most case management systems do not automatically save WhatsApp messages.

Enforcement is Key

But let’s not just put a policy in place and do what we’re great at—consider it a tick-box exercise, implement some procedures, and move on. Enforcement is crucial. Imagine the situation where an important case hinges on key messages as evidence, but the fee earner or client has lost their phone. Or, worse yet, someone tries to take lead from our former PM, and claims they are unable to provide key WhatsApp messages due to a forgotten passcode or missing chat history. Without strict enforcement and clear procedures for safeguarding these communications, policies will remain ineffective, and critical information could be lost or inaccessible when it’s needed most.

The Bigger Picture

The reluctance of firms and financial institutions to fully embrace WhatsApp is understandable. There are real concerns about data protection, regulatory compliance, and the potential complications during litigation or eDiscovery. However, completely avoiding WhatsApp is not a viable solution, especially in regions where it has become integral to business operations.

So, what do we do? Do we ban it outright and risk alienating clients who prefer this mode of communication? Or do we implement stringent policies and invest in technology that can integrate WhatsApp communication into our existing compliance and case management systems? As a minimum everyone who needs it should be given a Whatsapp business account and ensure it’s only used on a company issued device.

Moving Forward

This isn’t just a legal or compliance issue—it’s a broader question about how we adapt to evolving communication tools while safeguarding the integrity of our operations. The need for a balanced approach is clear, but finding that balance is the challenge.

What are your thoughts? How should firms approach the WhatsApp conundrum? Is it time for a more flexible approach, or should we stick to the tried-and-tested methods of communication?.

Referenced Article: https://www.legalfutures.co.uk/latest-news/law-firms-need-whatsapp-policies-when-advising-asylum-clients?