(This article appeared in Journal 13,4, December 2008)
To reduce expenses, pool resources, and keep from going stir crazy, solo practitioners may find it advantageous to share office space with other lawyers. Besides the obvious conflicts that arise when a Felix Unger shares offices with an Oscar Madison, lawyers considering an office-sharing arrangement need to be aware of the potential ethical problems inherent in such arrangements. Specifically, office-sharing lawyers will have to take steps to ensure that the public is not mislead as to the relationship between the lawyers, protect client confidences, and avoid conflicts of interest. In addition, the lawyers must make sure that any fee sharing between the lawyers complies with the rules of ethics.
When lawyers not in the same law firm share office space, there is a risk that the public will assume that the lawyers are part of the same firm. Office-sharing lawyers must take steps to clarify the relationship. They must ensure that in any communications they make, the public is not misled that there is any professional relationship between the lawyers when no such relationship exists. For example, office-sharing lawyers must avoid naming their affiliation in a way that implies there is a partnership or other professional association where none exists. Pursuant to RPC 116, lawyers involved in office sharing must make certain that the public is not misled into thinking that the affiliated attorneys are operating as a partnership. Rule 7.5 prohibits lawyers from practicing under a false or misleading firm name or letterhead. Rule 7.5(e) prohibits lawyers from stating or implying that they practice in a partnership or other organization except when that is the fact. Comment [4] to Rule 7.5 specifically forbids office-sharing lawyers from using a name such as "Unger and Madison," which falsely suggests that the lawyers are practicing together in a firm. The lawyers must use their own individual letterhead, pleadings, business cards, invoices, and advertising. In addition, all office signs must clearly reflect the relationship of the lawyers practicing in the office. If office-sharing lawyers receive legitimate indications that their representations may be misleading, they must take steps to remedy the problem.
A primary concern for lawyers who share office space is the protection of client confidences. Lawyers who share offices must take extra steps to protect client confidentiality. The lawyers' confidential files should not be accessible by other office sharers. Lawyers must make certain that staff members are familiar with the Rules of Professional Conduct and take proper measures to ensure that the staff members act in compliance with the rules. See Rule 5.3. Lawyers should restrict access to computers, telephone lines, copiers, and fax machines. Lawyers may share common space such as a reception area and conference rooms. However, conference rooms and offices should be organized in such a way that confidential client conferences cannot be overheard. Lawyers may share a receptionist if the receptionist does not have access to confidential information and does not give callers or visitors the impression that the lawyers are operating as a firm. The receptionist should answer the phone with a generic greeting such as "law offices" instead of "law offices of Unger and Madison."
Lawyers who share office space must also be wary of disqualifying conflicts of interest. Rule 1.0 defines a “law firm” as “a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law.” If the office-sharing lawyers are perceived as practicing together in a law firm, they risk being disqualified from representing adverse parties under Rule 1.10(a). Comment [2] to Rule 1.0 explains that whether an association of lawyers constitutes a law firm depends upon the manner in which the association holds itself out to the public. The comment specifically states that “[a] group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to another.” While CPR 274 provides that it is conceivable that two or more lawyers may maintain an office sharing arrangement and represent conflicting interests if the confidentiality of each attorney’s practice is maintained both in appearance and fact, the safest course of action is to enter into adverse representation only in exceptional circumstances and only with the informed written consent of each client.1
Finally, any fee sharing between office-sharing lawyers must meet the requirements set out in Rule 1.5(e). Rule 1.5(e) provides that a division of a fee between lawyers who are not in the same firm may only be made if the total fee is reasonable, the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation, and the client agrees in writing to the arrangement.
Lawyers should contact their malpractice insurance carrier to discuss vicarious malpractice liability risks relating to office-sharing arrangements and to get the insurer's risk management suggestions and advice. Sharing office space with another lawyer presents a unique set of ethical considerations. However, if the lawyers sufficiently address the issues presented, an office sharing arrangement can be both ethical and cost effective. If Oscar and Felix could do it, so can you.
Suzanne Lever is assistant ethics counsel at the State Bar.
Endnote
- The ethics opinions that were issued under the superseded Code of Professional Responsibility are called "CPR's." These opinions still provide guidance on issues of professional conduct except to the extent that a particular opinion is overruled by a subsequent opinion or by a provision of the current Rules of Professional Conduct. You may obtain a copy of a CPR opinion by calling the ethics department at the State Bar.