Practice Pointer: Ethical Considerations for Office Sharing
by Kate A. Toomey
If you're a solo practitioner an office sharing arrangement might be attractive for a number of reasons such as saving money while at the same time enjoying the advantages of collegial relationships without undertaking the responsibilities of a more complex business organization. From an ethical standpoint, there is no reason you shouldnÕt do it, but you need to be aware of the Rules of Professional Conduct and their ramifications for office-sharing. Here are a few things to keep in mind.
Your Letterhead and Other Indicia of Your Practice Must Accurately Portray You as a Sole Practitioner
You can identify your law firm using your own name, but you can't use the names of attorneys with whom you merely share space.1 So "Kate Toomey, Attorney at Law" is acceptable, but "Law Offices of Toomey, Walker, and Akiyama" is not. If I were a solo practitioner, and identified all (or any) of the people with whom I share office space, this would create the misleading impression that I belong to a law firm having more than one member. The rules don't allow it.
Note that this applies to any means by which you identify yourself and communicate concerning your practice. The obvious examples include your letterhead, business cards, building directory, door signs, and any advertising.2 It also includes some things that may not be so obvious, such as the transmission information at the top of a facsimile and a firm name embedded as part of an e-mail address.
Take Steps to Safeguard Your Clients' Confidentiality
The rules prohibit lawyers from revealing "information relating to representation of a client."3 The Comment following the rule characterizes this as "[a] fundamental principle in the client-lawyer relationship," and it must be honored in setting up an office-sharing arrangement.
Maintain your client files in a space physically separate from that of other attorneys and ensure that you and your employees are the only ones with access. A locked file cabinet is sufficient; a separate locked file room is even better.
Make sure your verbal communications with clients are private. This means that you must have a separate office with a door; it also might mean closing your door when youÕre meeting with a client or talking on the phone. Likewise, donÕt allow anyone not directly under your employ and supervision to open your mail.
Be careful about telling war stories that reveal confidential client information. It's ok to talk in the abstract about legal questions you're working on, but be sure to scrupulously eliminate information about particular clients and their cases.
Be Careful About Sharing Employees
It may be all right to share a receptionist who directs calls and visitors to anyone using the office space and to share a runner or delivery person. Because sharing such employees could implicate Rule 1.6, the best practice would be to inform potential clients that their identities may be known to such employees, and obtain the prospective client's permission as part of the engagement process.
What you must be especially careful about is sharing employees such as paralegals and secretarial staff with access to client information. Under the rules, you must make reasonable efforts to ensure that non-lawyer employees conduct themselves in a manner compatible with your own professional obligations, as you may be responsible for conduct that would constitute a violation of the Rules of Professional Conduct.4
Avoiding conflicts of interest is a particular concern. An obvious example is that you can't share a paralegal who works for separate attorneys on both sides of a divorce.5
The easiest way to avoid problems in this arena is to avoid sharing employees at all.
Whatever You Do, Don't Pass Along a Case Without Obtaining the Client's Permission
Attorneys sometimes transfer client files to attorneys with whom they share an office as a convenient way of dealing with their own scheduling conflicts. This is all right provided the attorney has obtained the client's advance permission after consultation, and provided that the attorney to whom the case is transferred has no impediments to accepting it, such as a conflict of interest, or an inability to provide competent representation under the circumstances. If these conditions haven't been met, you would be in violation of the rules governing communication6 and confidentiality.7
Some Thoughts In Closing
There are ways to construct an office-sharing arrangement that don't conflict with your duties under the Rules of Professional Conduct. If you have specific questions about what is permissible, you can call the Ethics Hotline (801-531-9110) and one of the OPC's attorneys will provide you with informal guidance. And remember, you'll never regret exercising caution when it comes to managing your practice.
1. The Rules prohibit attorneys from stating or implying that they practice in a partnership or firm unless they really do. See Rule 7.5(d), R. Pro. Con. The Rules also prohibit an attorney from using "a firm name, letterhead or other professional designation that violates Rule 7.1." Rule 7.5(a), R. Pro. Con. In turn, Rule 7.1 states that "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." Rule 7.1(a), R. Pro. Con.
2. This also goes for law firms renting space to attorneys who are not members of the firm. For example, it is not proper to list attorneys who are not members of the firm under the name of the firm in the building directory. Such attorneys should be listed using their own names, or the names of their firms so as to accurately communicate their status.
3. Rule 1.6(a), R. Pro. Con. Note that the rule governing confidentiality is different from, and much broader than, the evidentiary privilege. The rule provides some exceptions. See id. at (b).
4. See Rule 5.3(b), (c), R. Pro. Con.
5. Note that this is true even outside the office-sharing context. If you independently contract with a part-time paralegal who is employed elsewhere, you could encounter similar problems.
6. See Rule 1.4 (Communication), R. Pro. Con.
7. See Rule 1.6 (Confidentiality of Information), R. Pro. Con.