New ABA Formal Ethics Opinion on Attorney Office Sharing Arrangements
The American Bar Association recently issued a Formal Ethics Opinion addressing the ethics of attorney office sharing arrangements. In Formal Opinion 507, issued on July 12, 2023, the ABA Standard Committee on Ethics and Professional Responsibility opined that office sharing arrangements among non-affiliated attorneys are generally permissible under the Model Rules of Professional Conduct so long as certain ethical duties relating to confidentiality, conflicts of interest and supervision of non-lawyers are observed.
The Opinion recognizes that attorney office sharing arrangements come in many forms. There are traditional office sharing arrangements, where lawyers with separate law practices—mostly solo practitioners—share office space, support staff and equipment. There are office sharing arrangements where law firms rent unused office space to unaffiliated lawyers. Furthermore, lawyers often share an office suite, receptionist and conference room as part of a virtual law practice—an arrangement that has become increasing popular following the pandemic—as more lawyers are working from home offices.
The ABA advises that lawyers working in these type of arrangements must be particularly vigilant to ensure they are complying with their ethical duties. Maintaining confidentiality is a concern in a shared office environment, especially if the lawyers are sharing a receptionist or other support staff. The opinion reminds attorneys that appropriate supervision of non-lawyer assistants is required under Model Rule 5.3 and it is necessary to instruct shared employees on confidentiality obligations, as well as have office procedures in place to guard sensitive client documents and communications.
Conflicts of interest are another concern in shared office environments. The Opinion advises that lawyers must pay attention to avoid imputation of conflicts of interest. Model Rule 1.10(a) imputes conflicts of interest to all lawyers “associated in a firm.” Non-affiliated lawyers in shared office arrangements are not automatically treated as a single law firm for conflicts purposes, but the ABA advises that they could be, depending on the facts and circumstances of each arrangement. In order to avoid the possibility of being treated as a single law firm for conflicts purposes, the Opinion advises attorneys to protect the confidentiality of their respective clients, avoid regularly consulting with each other on client matters, avoid sharing staff with access to client information, and take appropriate steps to clearly communicate the nature of their relationship to the public and to clients.
Representing clients with adverse interests, even in the same lawsuit or transaction, is also discussed by the ABA Standard Committee on Ethics and Professional Responsibility in Formal Opinion 507. Although the Opinion recognizes that some state ethics opinions advise attorneys who share office space to avoid these situations entirely, the Committee opines that it may be permissible. The Opinion states that, although the determination will ultimately turn on the specifics of the office sharing arrangement and the nature of the proposed representation, Model Rules 1.4 (Communication) and 1.7 (Conflicts of Interest: Current Clients) may require the attorneys to adequately disclose the arrangement with the prospective clients and obtain informed consent, in writing, to permit the representation to proceed. The Opinion advises that lawyers considering an office sharing arrangement should discuss the nature of each other’s practices in order to determine whether conflicts of interest are likely to arise and, therefore, whether the arrangement is a good idea in the first instance.
Finally, Formal Opinion 507 addresses consultations between lawyers sharing office space and conflict of interest implications. The Committee opines that occasional informal consultations do not result in lawyers being “associated in a firm” under Model Rule 1.10(a). However, attorneys should avoid divulging confidential client information and use hypothetical facts to avoid the possibility that the listener will be able to ascertain the identity of the client or the situation involved. The Opinion cautions that consultations between lawyers in office sharing arrangements could trigger unanticipated conflicts of interest that restrict the consulted attorney’s ability to represent a current or future client under Model Rule 1.7(a)(2) if that attorney receives too much information.
Legal Update for Lawyers’ Professional Liability – February 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.