Cba Ethics Committee Opinion
| Jurisdiction | Colorado,United States |
| Citation | Vol. 12 No. 1991 Pg. 2493 |
| Pages | 2493 |
| Publication year | 1991 |
1991, December, Pg. 2493. CBA Ethics Committee Opinion
The Colorado Bar Association Ethics Committee ("Committee") has received inquiries concerning ethical issues presented in office sharing situations of lawyers. Sharing office space is a common, time-honored method of association among practicing lawyers. It provides reduced operating costs, collegiality among lawyers and a convenient source of lawyers to fill in for one another when one is sick or on vacation. At the same time, office sharing arrangements allow lawyers to retain the financial independence and control over the practices valued by sole practitioners not sharing offices. While deriving benefits from office sharing arrangements, lawyers should be aware of the potential ethical problems such arrangements may present.
This opinion addresses the following ethical concerns in office sharing arrangements: conflicts of interest and duty of loyalty to clients; preservation of client confidences; and use of letterheads and names. Factual patterns illustrating common problems are included to demonstrate the application of general ethical principles to specific areas of concern.
Attorneys sharing offices may represent clients with conflicting interests only if such representation does not violate the applicable disciplinary rules within Canon 5. For example, the financial, business or operating relationship among the lawyers must not create differing interests of the lawyer which could cause a violation of DR 5-101(A). See also, Proposed Model Rule 1.7. In some situations, office sharing lawyers who represent clients with actual or potential conflicting interests to each other may be prohibited from representing those clients. See, DR 5-105(D); Proposed Model Rule 1.10. Where such representation causes a conflict described by DR 5-105, the office sharing lawyers may nevertheless represent clients with conflicting interests if it is obvious to each lawyer that he or she can adequately represent the interest of the client, and if each client consents to the representation after full disclosure of the possible effects such representation may have on the exercise of the lawyer's independent professional judgment. DR 5-105(C).
In addition to potential conflict problems, office sharing attorneys must take precautions to avoid disclosure of client confidences in all matters. The Code, Canon 4; Proposed Model Rule 1.6. Office sharing lawyers should be particularly attentive when lawyers or their employees have access to each other's file storage and/or have shared reception areas, staff, computer and telephone equipment. Important factors to consider in protecting confidentiality are sharing of staff and equipment and the overlap in the areas of practice between the lawyers. The more shared equipment and staff or the larger the overlap in areas of practice, the greater potential for inadvertent disclosure of client confidences and secrets and that such disclosure will be harmful to the client.
Finally, office sharing lawyers must scrupulously avoid any representation to the public that there is a professional corporation, partnership, associate or other law firm or employment relationship among them when no such relationship exists. DR 2-102(C); Proposed Model Rule 7.5; CBA Formal Opinions, 8, 9 and 50. Otherwise, an office sharing attorney misleads the public that the other lawyer in the office bears some additional responsibility for the office sharing attorney's legal services and standards.
The Code requires that lawyers have undivided loyalty to their clients and that the lawyers be free from influences which may affect such loyalty. DR 5-10(A) and (B); DR 5-105; Allen v. District Court, 519 P.2d 351 (Colo. 1974); EC 5-1 and EC 5-19. Accordingly, office sharing attorneys should avoid representing clients with actual or potential conflicting interests to each other since this practice is rife with ethical problems.(fn1) "Except with the consent of his [or her] client after full disclosure, a lawyer shall not accept employment if
the exercise of... professional judgment on behalf of [the] client will be or reasonably may be affected by his [or her] own financial, business, property or personal interests." DR 5-101(A). DR 5-105 requires a lawyer to decline proffered employment if it would likely involve him or her in representing differing interests, unless this actual or potential conflict is waived by the client after full disclosure. Finally, Canon 9, which requires a lawyer to avoid "even the appearance of professional impropriety," further militates in favor of lawyers in an office sharing situation avoiding conflicts of interest. While the representation of adverse parties in an office sharing situation may not be a per se violation of Canon 9, lawyers should recognize that representation in such circumstances is fraught with ethical pitfalls. See, e.g., CBA Formal Opinion 75, adopted June 20, 1987 (spousal conflicts).
When lawyers share office space, they usually have financial relationships with each other. Examples of such financial relationships include:
A young lawyer beginning a practice may commit to work a certain number of hours each month for an established attorney who provides free office space and services in exchange;
Office sharing lawyers may be jointly liable on a lease and may share other overhead costs as well; and
One attorney may own or rent offices which he or she rents to a second attorney.
Shared financial arrangements between and among office sharing lawyers can be very advantageous to all of the lawyers involved. However, these financial arrangements can...
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