Like other industries, attorneys are adapting to changing workforce trends. This includes greater flexibility facilitated by developments in technology and remote work capabilities. A recent hotline call posted a question regarding simultaneous employment at different firms. While we’ve previously addressed a similar question regarding of-counsel relationships, this one had a new twist: can a licensed attorney be employed as an associate at multiple firms at the same time?
About 10 years ago, the Board of Professional Conduct reversed its longstanding position against simultaneous employment, citing the reality that other jurisdictions have permitted simultaneous employment, the expanded definition of a “law firm,” and practical considerations for attorneys including financial and regional needs. Advisory Opinion 2013-1 advises that a lawyer may simultaneously practice in multiple firms. However, the opinion provides cautionary advice: “A lawyer who engages in simultaneous practice in multiple firms must recognize the potential ethical issues connected with such practice.” The syllabus of Advisory Opinion 2013-1 identifies three areas for professional vigilance, discussed below.
Conflicts: “The lawyer has to be diligent in avoiding conflicts of interest, and the imputation of conflicts will apply across all associated ‘firms.’” Rule 1.10 applies and the lawyer and all the firms where the lawyer is employed will be burdened by the conflicts. When more than one firm shares the same lawyer, it makes all the firms effectively a single firm for purposes of attribution of disqualifications. See, Advisory Opinion 2008-1; see also, ABA Formal Opinion 90-357.
Confidentiality: “The lawyer is also required to scrupulously maintain client confidentiality and professional independence.” Generally, attorneys in the same firm may consult freely with colleagues in their firm under Rule 1.6, but Comment  cautions: “Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.”
It is also critical for the dually employed attorney to use the appropriate email address and other communication systems when communicating with a client, opposing counsel, or others related to a particular matter.
As a hypothetical, Attorney Bowers is an associate at both Couch & Hunker, LLP and at Mote & Associates LLC. She must take care that emails are not exchanged between her email addresses, or that she communicates with Couch & Hunker clients using her Mote & Associates email address. Doing so could run afoul of multiple Rules of Professional Conduct and potentially set up grounds for legal malpractice.
Information about Legal Services: “As part of the lawyer’s duty to refrain from false, misleading, or nonverifiable communications about the lawyer or the lawyer’s services, the lawyer must inform his or her clients of all multiple firm associations.” When representing a client, both law firm and lawyer should be clear with clients about the relationships and by which firm and attorney they are represented. Consider revising fee agreements to memorialize that communication clearly.
Further, OBLIC urges those responsible for firm management to update firms’ lawyers professional liability (“LPL”) policies when an attorney joins or departs a firm, noting any simultaneous employment by a named insured attorney in a firm. Simultaneous employment must be noted or excluded in the applicable LPL policies to clarify how coverage might apply to the dually employed attorney.
OBLIC takes pride in delivering relevant and timely information to our insured attorneys. Please remember our complimentary loss prevention hotline – a resource for policyholders to access helpful recommendations, ethics consults and sample forms. We’re here to help resolve your questions and be of service to you!
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.