As law firms continue to adapt to our post-COVID world, office sharing is in the mix of options. Whether a solo attorney looking to maximize an office location or a multi-location firm seeking to economize unused offices, there are ethical duties that apply.
The ABA Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 507 Office Sharing Arrangements with Other Lawyers to address these situations. The Opinion discusses four areas where ethical duties are implicated and offers suggested best practices:
- Confidentiality of information
- Supervision of lawyers and non-lawyers
- Communications about lawyer’s services
- Conflicts of interest
Confidentiality of Information
The Opinion reminds that client confidentiality is central to the practice of law. This duty is the most difficult to continually maintain, and is thus imperative, in an office sharing arrangement. Although the mere act of sharing office space does not necessarily mean that client information will be disclosed, the physical layout of an office shared by independent attorneys/firms and their respective staff can potentially lead to the exposure of client information.
Some suggested ways to help preserve client confidentiality are:
- separate lobby or waiting areas
- refraining from leaving client files out on workspaces, conference rooms, or kitchen tables
- installing privacy screens on computer monitors
- locking down computers when not actively in use
- employing clean desk policies
- regular training/reminders to staff of the need to keep all client information confidential
The ABA Opinion references Ohio Board of Professional Conduct Opinion 2022-11 for the notion that office sharing lawyers can restrict access to client-related information by securing physical client files in locked cabinets and offices and using separate telephone lines and computer systems. Confidentiality concerns with shared telephone and computer systems may be addressed with appropriate security measures, staff training, and client disclosures.
Supervision of Lawyers and Non-Lawyers
The ABA Opinion as well as Ohio Adv.Op.2022-11 stress the importance of instructing all lawyers and employees, especially any shared employees, of the requirement to protect client confidential information. Model Rule 5.3 and Prof. Cond. R 5.3 require that lawyers with managerial authority make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer.
Communications about Lawyer’s Services
Model Rule 7.1 and Ohio Rule 7.1 prohibit false and misleading communication about the lawyer or the lawyer’s services. Lawyers who share offices but do not practice together as a law firm must take appropriate steps to clearly communicate the nature of their relationship to the public and to their clients.
These practices should be followed by lawyers in an office sharing arrangement:
- use separate business cards, letterhead, and directory listings
- have separate telephone lines or, if sharing a central phone line, ensure that it is answered, “Law Offices”
- secure office signs, firm names, and advertisements that identify their distinct practices
The ABA Opinion notes where a law firm subleases excess space to unaffiliated lawyers, it may not be possible to have separate signage. The lawyers must clarify the professional relationships for their clients and inform that the law practices are not affiliated with one another, except with their space-sharing arrangement.
See also Ohio Adv.Op.2017-5 Virtual Law Office on shared office space.
Conflicts of Interest
Lengthy discussion is given to conflicts of interest situations for lawyers in shared office arrangements:
- avoiding imputation of conflicts of interest
- taking on potential new matters adverse to clients represented by attorneys sharing the same office
- consulting with attorneys sharing the same office but not affiliated with the same firm
Avoiding imputation of conflicts of interest
Model Rule 1.10 imputes conflicts to all lawyers “associated in a firm.” Key to this is whether the lawyers are or appear to the public or their clients as “associated in a firm.”
Lawyers sharing space are not automatically treated as a firm. This determination depends on facts and circumstances of each situation. Lawyers are more likely to be treated as “associated in a firm” if they:
- do not protect the confidentiality of their respective clients
- regularly consult with each other on matters
- share staff who have access to client information
- mislead the public about their identity and services; and/or otherwise fail to keep their practices separate.
Representing Clients with Adverse Interests
The Opinion notes that it may be permissible under the Model Rules, in an office-sharing arrangement, for non-associated attorneys to represent clients with adverse interests, even in the same lawsuit or transaction. However, lawyers in an office sharing arrangement are advised to properly shield the confidentiality of their respective clients and ensure that they are not held out to the public as members of the same firm.
Ohio Adv. Op. 2022-11 notes that if two lawyers in a shared office arrangement are representing adverse clients in a matter, the same nonlawyer staff person should not be assigned to both lawyers during the representation. The Ohio Board of Professional Conduct recommends that when lawyers choose to share nonlawyer staff, a written procedure be developed for the nonlawyer staff to identify potential conflicts.
The ABA Opinion suggests that before entering an office sharing arrangement, it is prudent for a lawyer to examine the nature of the other lawyers’ practices to determine whether conflicts of interest are likely to arise.
Consultations Between Office Sharing Lawyers
Of course, if lawyers are in an office sharing arrangement, they may informally consult one another about their respective client matters. As noted in Ohio Adv. Op. 2022-11, this type of informal consultation does not result in the lawyers constituting a law firm. Lawyers who consult with another lawyer must be careful not to reveal client confidential information by presenting “hypotheticals.”
The ABA Opinion describes a situation where consultations between office sharing lawyers result in the unanticipated consequence of restricting a consulted lawyer’s availability under Model Rule 1.7(a)(2) to represent a current or future client. This situation, which parallels the confidentiality duties that lawyers owe to prospective clients under Model Rule 1.18 and the conflicts problems if a lawyer receives too much information from a prospective client in an initial consultation, can be avoided by a standard conflict check prior to any informal consultation.
ABA Opinion 507 concludes that lawyers may participate in office sharing arrangements if they fully consider and comply with the applicable ethical responsibilities of confidentiality of information, supervision, communication about their services, and conflicts of interest.
Ohio Adv. Op.2022-11 addresses an aspect of office sharing that is not discussed in ABA Opinion 507, whether there are restrictions on the division of fees among lawyers who have separate law practices in the same building and collaborate on legal matters. Ohio Adv. Op. 2022-11 states that the (Ohio) Rules of Professional Conduct do not prohibit lawyers in separate legal practices from dividing fees or from collaborating on legal matters as co-counsel. However, because the lawyers are not in the same firm, they may only divide fees pursuant to Prof.Cond.R.1.5(e)(2).
We hope this information is helpful to lawyers considering the options of office sharing. As always, if you have any questions, we’re here to help! Please give us call or email us how we may further assist 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.
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