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Volume 20, Number 5 July/August 2003

ETHICS CONCERNS IN SHARED OFFICE SPACE

William I. Weston

Solo practitioners are generally born and not made-they want to be independent and to make their own choices. But being alone in an office suite presents challenges that include the need for backup and support. Sharing office space may seem to present the perfect solution.

In the classic shared office arrangement, each lawyer has an office (the size may determine the rent share); but the conference room/library, waiting room, storage and file space, office equipment such as fax or photocopier, phone system, and support staff may be shared by all. This approach has much to offer. The costs of support (a receptionist and, sometimes, secretary) and the physical plant are borne by several lawyers rather than being the sole obligation of one lawyer. Moreover, other professionals in the suite share ideas and information and even case referrals.

An ideal shared arrangement includes lawyers with a variety of practice areas in order to avoid competition and encourage referrals. Limited backup for lawyers in case of emergency or schedule conflict may also be more available. However, an equal measure of risk may be associated with this arrangement. Without careful and thoughtful planning in advance of the move, this ideal arrangement can easily become a pitfall-very risky and ethically daunting.

Ethics Considerations
The first and most important step in developing the working relationship among the parties is a written office plan. This agreement must carefully anticipate serious ethical problems. Operational systems and specific written policies must protect each law practice-almost as if the lawyer were in a true solo situation. In particular the "two C's"-Confidentiality and Conflicts of Interest (Model Rules 1.6, 1.7, 1.8, 1.9)-must be addressed to protect client information at every level and to avoid a wide variety of potential conflict situations. In addition, this plan must take into consideration Model Rule 7.5, Comment (2) regarding the organization of a law practice as well as the risks of sharing fees and referring cases under Model Rule 1.5.

In analyzing the potential ethical issues, the best place to start is the point at which the client physically approaches the door of the suite. Model Rule 7.5, Comment (2) cautions against lawyers in shared office space giving the impression that the suite is in fact some form of law firm. Each lawyer's name should be identified separately at the entrance to the suite, and each office should be separately identified as well. Letterhead should reflect only the lawyers associated with that particular practice.

If one of the firms in the suite has multiple lawyers (not an uncommon occurrence), the offices should be arranged to keep the members of that firm together and avoid the appearance of the solos being part of that firm. An informal grouping can create the aura of a partnership, which may extend responsibility and liability for professional acts of other lawyers. Part of the planning process should include ways in which lawyers can provide backup and assistance without creating the impression that they are part of a law firm in the suite.

Another up-front place for risk is a shared receptionist. This is a common position in a shared suite but carries professional and ethical dangers. The receptionist has a particularly difficult job, handling calls and clients for a number of independent and separate professionals without revealing confidential information or creating the impression that the office is a firm, not a group of solo practitioners in shared space. The receptionist has information about all of the clients who come to the office and, with training, can serve an important role in avoiding conflicts. However, the job description must be carefully defined and the individual carefully trained to recognize both confidentiality and conflicts issues.

People sitting in the waiting room should not be privy to information about the clients-phone messages, comments on the phone, comments to clients in the waiting room. Such matters must be handled in a way that protects confidentiality and reflects the utmost professionalism. The same risks exist in a traditional law firm setting but are somewhat ameliorated by the partnership relationship, in which information is presumed to be shared.
The same level of forethought must go into designing the common area of the office as well, because the same confidentiality issue exists here. Fax machines should be sequestered, and incoming and outgoing documents must remain accessible only by the appropriate lawyer. Similarly, a system to protect files and records and ensure their confidentiality should be implemented.

The final area of concern is the referral of cases among the lawyers in the suite, covered generally by Model Rule 1.5. Referral of cases has been the subject of some concern among regulators, and the Model Rules sought to clarify the issue by demanding shared responsibility and/or work before fee-splitting is allowed. The referral itself is generally not the problem; the referral fee creates the problem. Client consent is also necessary, and some states even require judicial approval. Referring cases to lawyers in a shared office suite can be both a lure to new tenants and a good source of business growth. However, there are risks.

The client must be confident that the matter has been referred to a competent attorney and that the new attorney will maintain confidentiality. If fees are shared, the client must believe that there has been a sharing of responsibility and performance. These issues are harder to clarify in the confined space of a shared suite. Finally, for the referring attorney, the referral must be based on the assumption that the new attorney has the skills and knowledge to handle the matter. Clients have been known to sue the referring attorney when the referral goes south and use the sharing of fees to prove the continuing relationship.

In many respects sharing office space is a good solution for the solo practitioner; but the ethical risks and need for rigorous planning and procedures in advance of the move mean the solo practitioner must enter this arrangement warily. The rewards can be great and can enhance the success of the practice, but the ethical and practice risks must be fully anticipated and resolved in order to reap the benefits of practice enhancement

William I. Weston is associate dean of Concord University School of Law in Plantation, Florida. He can be reached at flaethic@attbi.com.