Earlier this month, the Ohio Board of Professional Conduct (“Board”) issued an Opinion which provides guidance to attorneys engaged or contemplating engaging in an office-sharing arrangement. Sharing office space has many enticing advantages for lawyers such as reducing overhead and having access to other attorneys to collaborate with, all while maintaining a sense of independence. This may be particularly appealing for lawyers seeking to work in hybrid working environments or to establish offices in multiple locations in or out of state. Whatever the driving force may be, lawyers must take special care to consider the diverse ethical issues raised by such arrangements.
Contours of sharing nonlawyer staff
While nonlawyer staff can generally be shared, there are limitations. The Board cites Ky. Ethics Op. E-406 and cautions that when lawyers sharing office space represent adverse clients in a matter, the same nonlawyer staff member cannot be assigned to both lawyers during the representation. The Board recommends implementing a written policy to identify conflicts when office sharing lawyers do use the same nonlawyer staff. Rule 5.3(b) requires lawyers supervising nonlawyer staff to ensure their staff understand that the confidentiality obligations under Rule 1.6 apply equally to the staff members. Accordingly, nonlawyer staff cannot divulge client information to other nonlawyer staff and lawyers sharing the same space who are not working on the same client matter. And though not addressed in the Opinion, one could certainly imagine problems, even disqualification, if steps are not implemented to ensure that documents are not segregated from staff working for adverse parties.
Given the logistics of shared space, the Board reminds office-sharing lawyers to act competently in protecting confidential client information from reaching unintended recipients. The Board recommends separating and safeguarding electronic and physical client files from other lawyers’ filing systems, keeping all in-person, telephonic, electronic, and written communications regarding clients in a manner to prevent unintentional disclosure; and ensuring that staff and lawyers alike refrain from communicating with or about clients in waiting and common areas. Lawyers should train nonlawyers staff on how to protect confidential client information.
Office sharing lawyers permitted to divide fees and collaborate on matters as co-counsel
Lawyers sharing office-space, but who are not in the same firm, are only allowed to divide fees pursuant to Rule 1.5(e)(2). However, lawyers under this scenario must (1) either divide the fee in proportion to the services performed by each lawyer or alternatively each lawyer assume joint responsibility and agree to be accessible to consult with the client; (2) obtain written client consent; (3) if applicable, obtain a closing statement signed by the lawyers and client; and (4) ensure the fee is reasonable. Similarly, lawyers sharing office space may informally assist or consult each other about a case without billing the client. This type of casual collaboration does not establish a law firm per Rule 1.0 cmt.. Also, pointing to ABA Opinion 480, the Board cautions lawyers that discussing hypotheticals that disclose facts that can reveal the identity of a client won’t pass Rule 1.6 muster.
Considerations from other states
DC’s Opinion 303 reminds lawyers that office sharing arrangements by unaffiliated attorneys can create a risk of public confusion that the attorneys are affiliated, and that D.C. Rule 7.1 (prohibiting false or misleading communications about the lawyer’s services) applies to a lawyer’s professional affiliations. In Opinion 764, Illinois SBA opined that those lawyers sharing an office-space cannot use common stationary. Virginia Opinion 874 clarifies that a lawyer may share office space with a firm located in a large building, despite the lawyer’s office only being accessible through an area used by the sharing firm. Further, it would be appropriate for the lawyer to place a sign in the lobby to clarify his status as being unaffiliated with the sharing firm.