Washington Lawyer

Speaking of Ethics: Unaffiliated Lawyers Sharing Office Space and Services

From Washington Lawyer, July/August 2001

By Ernest T. Lindberg

ethics

To provide cost-effective legal services to their clients, attorneys in high-cost metropolitan areas, like the District of Columbia, commonly practice law in shared office suites, often utilizing shared staff and facilities. With these arrangements, the overhead expenses for receptionists, meeting rooms, libraries, and office equipment are shared, reducing the cost to the individual attorney.

Legal Ethics Opinion 303 (February 2001), consistent with opinions of eight other state bar organizations, including Maryland and Virginia, confirms that nothing in these jurisdictions’ ethics rules prohibits attorneys from sharing office space, personnel, equipment, or expenses. However, the opinion notes that though shared arrangements provide economic benefits, they also create potential ethical problems that must be avoided by attorneys participating in the arrangement.

Specifically considered are matters of public confusion, client confidentiality, professional independence, and conflicts of interest. Rule 7.1 of the Rules of Professional Conduct provides that “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” This proscription applies to both material misrepresentations and material omissions about the lawyer’s services, including the professional affiliations of the lawyer.

Office-sharing arrangements by unaffiliated attorneys create a risk of confusing and thereby misleading the public into thinking that the attorneys involved in such arrangements are affiliated with one another when in fact no such relationship exists. See Rule 7.5(d), Comment [2] (“lawyers sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, Smith and Jones, for that title suggests partnership in the practice of law”). If there were no such affiliation, the public would be misled as to the true nature of the relationship between these attorneys. The potential for misleading the public may also arise from the manner in which the attorneys are identified in directory listings, office signs, and advertisements, even in the way they introduce one another to clients and the public.

Noting the possibility of confusion arising from the manner in which a receptionist might answer the telephone, Opinion 303 finds favor with the simple answer “Law Offices.” See also Ohio Ethics Op. 95-1 (1995); Connecticut Ethics Op. 89-3 (1989); Rhode Island Ethics Op. 88-5 (1988). In short, attorneys involved in an office-sharing arrangement must ensure that in all communications made about the nature of their practice, the public is not misled into thinking that there is any firm, partnership, corporate, “of counsel,” or other relationship between the attorneys when no such relationship exists. If a firm receives legitimate indications that its representations may be misleading, the firm must take steps to remedy the problem in its representations to the public and with respect to any legitimate misunderstandings of actual and prospective clients.

Another concern in office-sharing arrangements between unaffiliated attorneys is preserving the confidences and secrets of each attorney’s clients. The attorneys must ensure that client confidences and secrets are protected, and that each attorney is responsible not only for his or her own actions but for the conduct of staff, to ensure compliance with that requirement. For example, confidential client files should not be left in unlocked file cabinets or in storage areas within shared office space where they might be accessed and confidentiality might be compromised.

Similarly, it would be impermissible for unaffiliated attorneys to have unrestricted access to one another’s electronic files (including e-mail and word processing documents) and other client records. If separate computer systems are not utilized, each attorney’s confidential client information should be protected in a way that guards against unauthorized access. The ethical implications of sharing a single fax line, which might permit confidential client information to come into the hands of unauthorized parties, should also be considered. See Michigan Informal Ethics Op. RI-249 (1996); Rhode Island Ethics Op. 93-99 (1994); Colorado Ethics Op. 89 (1991). The bottom line is that attorneys in these arrangements must take “all steps reasonably necessary to protect the confidentiality of their individual client information,” including taking affirmative steps to instruct the employees on their obligations to preserve client confidences and provide the continuing oversight necessary to ensure that this is done.

In addition to the foregoing concerns, professional independence must be maintained. While in an office-sharing arrangement, attorneys may regularly rely on one another as a source of business referrals, as backup coverage, or as a sounding board on difficult legal issues. However, lawyers in this arrangement are not partners in the practice of law together and cannot treat one another as such. The issue of professional independence directly affects the treatment of potential conflicts of interest among clients represented by office-sharing attorneys and, of course, the confidentiality of information.

The requirements of Rule 1.7, dealing with general conflicts, and the other conflict-of-interest rules are imputed under Rule 1.10 to other lawyers “associated in a firm.” As Comment [1] to Rule 1.10 provides, “practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm, or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules.” In determining whether unaffiliated attorneys are acting in concert as a firm, it is important to consider not only the terms of any formal agreement but whether “they have mutual access to confidential information concerning the clients they serve.” See also D.C. Bar Ethics Op. 247 (1994).

It is important to recognize that office-sharing arrangements can create conflicts that may disqualify the attorneys participating in those arrangements. See In re Sexson, 613 N.E.2d 841 (Ind. 1993) (where lawyers shared office space, secretary, letterhead, phone lines, and apparent access to confidential information, it was reasonable for client to assume that lawyers were members of same firm; lawyer could not represent wife in divorce action when another office-sharer represented husband in personal injury claim); Virginia Ethics Op. 677 (1985) (lawyer sharing office space and expenses with another lawyer may not represent husband in divorce where the other lawyer previously represented husband and wife in property settlement at issue in the divorce action).

Attorneys who wish to share office space must ensure that these arrangements do not create an impermissible conflict of interest or otherwise adversely affect their ability to represent their clients zealously.

Ethics counsel Ernest T. Lindberg and Susan D. Gilbert are available for telephone inquiries at 202-737-4700, ext. 231 and 232.