Sharing is caring – the legal ethics of office sharing

In recent years, office-sharing has grown increasingly popular amongst lawyers. It’s easy to see why: it offers the potential for cost-savings and sharing; easy collaboration and co-counseling opportunities; and, for those less infatuated with the current work-from-home zeitgeist, an opportunity to work in a more traditional (read: out-of-the-house) setting. However, lawyers interested in sharing office space should be aware of the inherent ethical risks involved, and the best practices for mitigating them.

Confidentiality breaches are the biggest ethical risk in office-sharing arrangements. Confidentiality is the foundation of a lawyer-client relationship. In California, a lawyer’s duty of confidentiality is multi-layered, and among the strictest in the country. Business and Professions Code § 6068(e)(1) requires a lawyer to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” California Rules of Professional Conduct (“RPC”) Rule 1.6 likewise prohibits the disclosure and revelation of confidential information.

For many reasons, confidentiality breaches are more likely when lawyers share office space. Thus, those lawyers must recognize these risks and implement safeguards to limit the possibilities for breaches. Such safeguards may include the creation of separate waiting areas for each lawyer’s clients; adopting secure document filing systems; using privacy screens on all computers. Lawyers who share offices should also train their support staff on the importance of confidentiality and enforce strict adherence to such protocols.

Lawyers should also take steps to ensure that their shared office arrangement does not create a misleading impression in the minds of their clients or the public. RPC 7.1(a) prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services. When lawyers share an office, clients and/or the public might infer that the lawyers are associated in a firm or are partners. To avoid this, lawyers in shared offices should use distinct business cards, letterheads, and directories that make clear that each attorney’s practice is independent of the others. Additionally, where possible, the lawyers should consider appropriate signage, or even a posted notice, that makes clear that the lawyers are not associated with one another. Ensuring clients are well-informed about the nature of the representation is key.

Office-sharing also presents an environment ripe for conflicts of interest to arise. RPC 1.10(a) addresses the standard for imputing conflicts of interest to lawyers “associated in a firm.” Lawyers who share office space are not automatically treated as a single firm, but could be found to be a “firm” depending on the specifics of each arrangement. (See ABA Formal Ethics Op. 507.) The ones most at risk of being deemed a “firm” are those who 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, or otherwise fail to keep their practices separate. Thus, lawyers who share offices must diligently avoid such behavior.

Conflicts of interest may also arise out of consultations between lawyers with shared offices. Informal consultations between non-associated lawyers are natural; however, lawyers must remain vigilant to avoid disclosing information that may reveal their clients’ identities or privileged information. For example, lawyers should consider using hypotheticals to discuss thorny issues, provided the listener cannot ascertain the client’s identity or situation.

Sharing office spaces can be beneficial, but it demands a commitment to professionalism and confidentiality. Once the appropriate safeguards are in place and observed, the sharing of office space should not otherwise impact a lawyer’s practice—lawyers who share an office are even free to represent clients adverse to one another, assuming the proper safeguards exist. (See ABA Formal Ethics Op. 507.) Thus, by proactively adopting confidentiality protocols, clear communication practices, and thoughtful conflict management, office sharing lawyers can embrace the advantages of shared offices while upholding their ethical obligations to their clients.