Ethics Opinion 303: Sharing Office Space and Services by Unaffiliated Lawyers

Inquiry
This Committee has been asked to address the ethical issues that arise when two or more attorneys agree to share office space and/or office services without forming a law firm or otherwise associating their practices. Similar issues arise when a sole practitioner rents office space and/or services from a law firm. Like the other jurisdictions that have considered this issue, we conclude that unaffiliated lawyers may share office space and/or office services subject to the continuing obligations of the individual attorneys to comply with rules of professional conduct.

Discussion
It has become increasingly common, especially in high cost metropolitan areas like the District of Columbia, for attorneys to practice law in shared office suites, often utilizing shared office staff and facilities. Through such sharing arrangements, an individual attorney’s overhead expenses for receptionists, support staff, meeting rooms, libraries, copy and fax machines, and the like can be proportionately reduced by the financial contributions of the other attorneys participating in the arrangement. These economic benefits, in turn, help attorneys to deliver cost-effective legal services to their clients.
As other jurisdictions have recognized,1 and we confirm, nothing in the rules of professional conduct prohibits attorneys from sharing office space, personnel, equipment, or expenses. However, while such sharing arrangements may provide undeniable economic benefits, they also have the potential to create ethical problems that must be recognized and avoided by all attorneys participating in the arrangement.

Public Confusion
Office-sharing arrangements by unaffiliated attorneys create a risk of public confusion that the attorneys involved in such an arrangement are in fact affiliated with each other when no such professional relationship exists. D.C. Rule of Professional Conduct 7.1 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.
     Messages conveyed to the public, explicitly or implicitly, about the nature of an office- and/or service-sharing arrangement between attorneys are fully subject to Rule 7.1 and must comply with its terms. For example, if attorneys A, B and C are in an office-sharing arrangement that is identified on common letterhead as “The Law Offices of A, B and C,” then the public would quite naturally assume that A, B and C were affiliated with each other in the joint practice of law. See D.C. Rule of Professional Conduct 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 among these attorneys.2
     Similarly, if solo attorney A is renting space and services from law firm B, C & D and the only sign in the vicinity of the office identifies the facilities as “The Law Firm of B, C & D,” then the public would quite naturally assume that attorney A is affiliated with the law firm of B, C & D. Once again, the public would be misled as to the true nature of the relationship among these attorneys. To avoid this potential for confusion, all attorneys in office-sharing arrangements should prominently display signage at the entryway to the office space that accurately describes the nature of the separate legal practices operating within that space. See Virginia Commw. Bar Cmte. on Ethics & Prof. Op. 874 (1987) (sole practitioner sharing office with law firm should ensure signage and directory indicate lawyer’s solo practice and lack of affiliation with law firm).
     Another source of public confusion about office-sharing arrangements is the manner in which shared office telephones are answered. A receptionist answering a shared office telephone with the greeting “Good morning, Law Offices of A, B and C” disseminates the same misleading message to the public as the letterhead example discussed above. It would be preferable, of course, for the sharing attorneys to have separate telephone lines that could be answered individually in the name of each attorney by the shared receptionist, but this may not always be practical. When it is not, the shared receptionist must be circumspect in implying an association of the unaffiliated attorneys by the manner in which the office telephone is answered or by any other acts suggesting relationships between the attorneys when none exist. To avoid any implication of affiliation between the individual attorneys, the proper greeting in answering the common telephone line is simply “Law Offices.” See, e.g., Ohio Ethics Op. 95-1 (1995); Connecticut Ethics Op. 89-3 (1989); Rhode Island Ethics Op. 88-5 (1988).
     Attorneys involved in an office-sharing arrangement must ensure that in all communications made about the nature of their practice, the public is not confused, deceived or misled that there is any firm, partnership, corporate, “of counsel” or other relationship between the attorneys when no such relationship exists.3 At a minimum, this includes avoiding the use of any written communications—such as letterhead, business cards, office signs, or advertisements—that combine or link the practices of the sharing attorneys in a manner suggestive of an actual affiliation. See ABA Formal Op. 310 (1963). If a potential client appears confused about the relationship among the attorneys in such an arrangement, the attorney should take steps to resolve this confusion, including making an affirmative disclaimer of any affiliation with the other attorneys in the shared office space.

Client Confidentiality
Another concern in office- and/or service-sharing arrangements between unaffiliated attorneys is preserving the confidences and secrets of each attorney’s clients as required by D.C. Rule 1.6. The attorneys involved in the office-sharing relationship must ensure that their own actions and those of the professional and support staff they are responsible for supervising fully comply with this obligation and protect client confidences and secrets.
     There are myriad logistical possibilities in office-sharing arrangements that could conceivably threaten client confidentiality. Individual attorney files and storage space in common or shared office areas must be treated in a way that preserves client confidentiality. An attorney in an office-sharing arrangement should not leave confidential client files in any unlocked file cabinets or storage areas within shared office space where they might be accessed and confidentiality compromised by unauthorized individuals.
     The same confidentiality concerns apply equally to computerized records and work files. It would be impermissible for unaffiliated attorneys to have unrestricted access to each other’s electronic files (including e-mails 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 and preserves client confidences and secrets.4 Similarly, attorneys sharing office space should consider the ethical implications of sharing a single fax line, which might permit confidential client information to come into the hands of unauthorized parties, including the unaffiliated attorneys who share office space. See Rhode Island Ethics Op. 93-99 (1994); see also Colorado Ethics Op. 89 (1991).5
     Regardless of the specific measures taken in the context of particular office-sharing arrangements, the bottom line is that attorneys participating in such arrangements must take all steps reasonably necessary to protect the confidentiality of their individual client information. This includes the appropriate exercise of caution by individual attorneys to refrain from divulging, without client consent, confidential client information in discussions they might have within the shared office space about their respective cases and the appropriate oversight of employees to ensure that they similarly protect client confidences and secrets. In circumstances where the office-sharing relationship involves shared employees, the lawyers participating in the arrangement should take affirmative steps to instruct these employees on their obligations to preserve client confidences and undertake the continuing oversight necessary to ensure that this is done.

Professional Independence
Attorneys sharing office space and/or services with other unaffiliated attorneys also must diligently protect the independence of their respective practices. It is only natural that attorneys involved in an office-sharing arrangement might rely on each other as a source of business referrals, back-up coverage when absent from the office, or simply as a sounding board for advice on difficult legal issues. But, in so doing, attorneys must take be careful to protect the attorney-client relationship that exists between them and each of their clients. No matter how convenient the intra-office relationships may become over time, attorneys in office-sharing relationships are not partners in the practice of law together and cannot treat each other as such.

Conflicts of Interest
The issue of professional independence is more than a mere aspirational concern, since it directly affects the treatment of potential conflicts of interest among clients represented by office-sharing attorneys. The requirements of D.C. Rule 1.7, dealing with general conflicts of interest, and the other conflict of interest rules are imputed to other lawyers “associated with a firm” under D.C. Rule 1.10. Comment [1] to Rule 1.10 provides that “[T]wo 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.” The commentary goes on to recognize that in making this determination, it is important to take into account not only the terms of any formal agreement between the lawyers but also whether “they have mutual access to confidential information concerning the clients they serve.” Id.; see also D.C. Bar Op. 247 (1994) (imputed disqualification under Rule 1.10 appropriately found where office-sharer was listed as “of counsel” to disqualified attorney).
This is an inherently factual inquiry turning upon the unique facts and circumstances of particular office-sharing relationship. But it is important to recognize that office-sharing arrangements can, in certain circumstances, create conflict issues potentially disqualifying the attorneys participating in those arrangements. See, e.g., ABA Informal Ethics Op. 1486 (Feb. 8, 1982) (lawyer may rent space from a law firm even though the lawyer and the law firm represent potentially adverse interests provided that appropriate care is taken to protect client confidences and clients consent to representation after disclosure); ABA Informal Ethics Op. 1474 (Jan. 18, 1982) (military lawyers working in same office and sharing common secretaries and filing facilities should avoid representing conflicting interests); Virginia Ethics Opin. 677 (Apr. 2, 1985) (lawyer sharing office space and expenses with another lawyer may not represent husband in divorce if office-sharer previously represented husband and wife in property settlement that is at issue in divorce action); 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). Attorneys who wish to share office space must ensure that these arrangements do not create the appearance of an impermissible conflict of interest or otherwise adversely affect their ability to zealously represent their clients.

Inquiry No. 00-8-32
Adopted: February 20, 2001

At least eight other state bar organizations (California, Colorado, Connecticut, Maryland, Michigan, Ohio, Rhode Island, and Virginia) have addressed office and/or service sharing arrangements between unaffiliated attorneys. All have approved such arrangements subject to varying qualifications designed to ensure compliance with the ethical rules addressed herein. See, e.g., California Ethics Opin. 1997-150 (1997); Colorado Ethics Opin. 89 (1991); Connecticut Ethics Opin. 90-27 (1990); Maryland Ethics Opin. 88-10 (1987); Michigan Informal Ethics Opin. CI-1045 (1984); Ohio Ethics Opin. 89-36 (1989); Rhode Island Ethics Opin. 88-5 (1988); Virginia Ethics Opin. 874 (1987).
The same potential for confusion can arise from the manner in which the sharing attorneys’ relationship is denoted on directory listings, office signs, and advertisements and the manner in which the sharing attorneys introduce each other to clients and other members of the public.
It is generally considered inappropriate to use the term “of counsel” to refer to a lawyer who merely shares office space. Kansas Ethics Opins. 83-34 (1983), 83-34A (1984); Michigan Informal Ethics Opin. CI-1081 (1984); Oregon Ethics Opin. 1991-12 (1991).
To the extent a shared computer system is used, it is likely that the same employees or third-party contractors would provide technical support and otherwise service the system. In such cases, the individuals providing technical support, like all shared employees or contractors, must be instructed regarding their obligations to maintain client confidences and secrets, and the lawyers involved must ensure that this occurs.
Where use of private fax lines is not possible, it may be necessary to make clear to potential users, particularly clients, that the faxed communications are not private. See Michigan Informal Ethics Opin. RI-249 (1996).