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(Opinions
No. 75-13 Modified)
LAWYERS
WHO MAINTAIN SEPARATE AND INDEPENDENT PRACTICES BUT SHARE CERTAIN
OFFICE FACILITIES, INCLUDING RECEPTION AREA, CONFERENCE ROOMS,
LIBRARY, COMPUTER SYSTEMS, AND RECEPTIONIST AND SECRETARIAL PERSONNEL,
MAY REPRESENT ADVERSE PARTIES SO LONG AS THE FOLLOWING PRECAUTIONS
ARE MET:
1. THERE
SHALL BE NO COMMON ACCESS TO THE CASE FILES;
2. THERE SHALL BE NO COMMON ACCESS TO ANY
COMPUTERIZED DATA RELATING TO THE CASE;
3. NO SECRETARY SHALL BE ALLOWED TO WORK
ON THE CASE FOR BOTH PARTIES;
4. ALL
COMMON EMPLOYEES SHALL BE INFORMED OF THE ADVERSE REPRESENTATION
AND THE EXTREME SENSITIVITY TO THE MAINTENANCE OF CONFIDENTIALITY;
AND
5. EACH
CLIENT SHALL GIVE HIS/HER CONSENT TO THE ADVERSE REPRESENTATION
AFTER FULL DISCLOSURE OF ALL FACTS RELATING TO THE COMMON PRACTICE
AREA.
FACTS
An attorney
proposes to develop an area where individual attorneys may have
private offices and at the same time share certain costs. The proposal
provides that the receptionist, secretaries, library, computer system,
and conference rooms would be shared by the attorneys. Each attorney
would have his/her own stationery, professional card and telephone
line. The computer system would be designed, as nearly as possible,
to insure that each attorney would have access only to his/her own
material. There would be no indication of affiliation among the
lawyers occupying the premises other than the fact of physical proximity
and sharing of certain personnel and facilities.
QUESTION
PRESENTED
Under the circumstances as stated above, may an attorney in the
office represent a client with interests adverse to those of a client
represented by another attorney in the same office?
DISCUSSION
Opinion 75-13 states that the sharing of offices by lawyers precludes
one of those who so shares with another from accepting a case which
the other cannot ethically accept. To a considerable degree, that
opinion relied upon informal opinions previously published by the
American Bar Association's Standing Committee on Professional Ethics.
Since the publication of 75-13, the question has been considered
by the appropriate committees on many state bar associations. The
written opinions range from being flatly prohibitive to generally
permissive.
The discussions generally relate to two Canons. Canon 4 requires
the preservation of confidences and secrets of clients. Canon 9
requires the avoidance of even the appearance of professional impropriety.
A sampling of the various state opinions follows:
Alabama - The adverse representation is permitted where the two
lawyers share a secretarial pool, a conference room, a library,
and other common areas of the building, provided that the lawyers
do not have access to each other's files in matters in which they
represent opposing interests.
Illinois - Adverse representation is permitted where the lawyers
share office space and secretarial help. Such representation is
permitted so long as each lawyer discloses the potential and conflicting
situation to the clients, and obtains the client's consent, and
each lawyer can represent his client with undivided allegiance.
The lawyers, however, may not share a common secretary in the representation
of clients with adverse interests. Such practice creates the potential
for disclosure of confidential information and the appearance of
impropriety.
Indiana - Lawyers who share office space, telephone systems, reception
area, and a library in the same building may represent adverse parties
in the same case if there is no access between the telephone systems
of the separate practices, the reception area is arranged such that
one lawyer's secretary is not able to overhear confidences from
another lawyer's clients, case materials are not left in the copier
area or library, and clients are informed of the space sharing arrangement
and the measures undertaken to avoid any compromise of confidentiality.
Iowa - An attorney who practices criminal law may not share an office
with two part-time county attorneys. The public may believe that
the criminal attorney holds special influence over the office of
the prosecuting attorney. Further, the arrangement creates an opportunity
to imply that the prosecutors have access to the lawyer's files
and to information concerning the lawyer's clients.
Kentucky - A lawyer who shares offices with the county attorney
may not accept employment adverse to the county nor defend criminal
cases in any other county. Since the county attorney may not defend
cases in any other county or federal court, neither may a partner,
associate or person who shares office space with the county attorney
practice criminal law in those jurisdictions. The appearance of
impropriety is too great.
Maine - A lawyer who maintains a separate law practice but shares
office space, equipment, and personnel with another lawyer may not
represent a client in an action against a client of the other lawyer.
The mutual sharing arrangement may Jeopardize both client's confidences.
Michigan - Lawyers who share office space may represent clients
with potential conflicting interests provided certain protective
measures are taken. The lawyers must establish office procedures
that will assure that client's confidences and secrets are maintained.
For example, the responsible lawyer may store client files in a
locked desk or in his home so as not to risk accidental compromise
should either lawyer chance upon them in the general office area.
Each lawyer must fully explain the relationship to his clients,
indicate that there will be no compromise of confidences, and obtain
the consent of the client to continue representation.
Missouri - Lawyers may share an office and represent opposing parties
so long as they hold themselves out as maintaining separate practices
and no confidential information is passed between them. However,
sharing a common secretary could pose problems.
New Hampshire - A county attorney may not conduct his civil law
practice from an office shared with criminal defense lawyers. The
possibility of breaches of confidentiality has a chilling effect
on a defendant's disclosure of confidential information and creates
the appearance of impropriety as the close proximity of the offices
may suggest to the public that the defense attorneys are in a position
to influence the conduct of the county attorney.
New York City - Law firms may not represent opposing parties where
the two firms share a suite of offices, and where the two firms
have close working relationship (i.e. the two firms act as co-counsel
in some cases, refer cases to each other, share a telephone system,
and the secretaries of both law firms cover for one another). There
is a strong likelihood that confidences and secrets of the firms'
respective clients cannot be maintained. The relationship between
office sharing lawyers places an undue burden upon each attorney
to maintain the client's confidences and secrets.
North Carolina - Lawyers who share office space may represent conflicting
interests if the confidentiality of each lawyer's practice is maintained
in both appearance and fact. The lawyers may share a common library
and copying equipment, for example, but not a common telephone number
or lay personnel.
Vermont - Two attorneys may occupy adjacent offices and share a
library, conference room and office equipment, and yet represent
clients with conflicting interests. In such an arrangement, the
attorneys are not subject to the same conflict of interest restrictions
as attorneys who are affiliated as partners. However, sharing of
files, secretarial coverage and discussion would invite an implication
of impropriety. To avoid misunderstandings, the attorneys should
inform their clients of the separateness of attorneys.
Virginia - Two attorneys sharing office space and a secretary must
withdraw from the representation of clients that are adverse, unless
consent of clients is obtained after full disclosure. Clients who
are infants are not capable of providing the informed consent necessary
to rectify a conflict of interest.
In addition to the foregoing, the American Bar Association's Standing
Committee on Ethics and Professional Responsibility issued Informal
Opinion 1486 on February 8, 1982. This opinion is as follows:
The committee is asked whether a lawyer may rent space from a law
firm where the lawyer and the law firm represent adverse interests
in pending lawsuits and contemplate referrals to each other in the
future. The lawyer will not be associated with the law firm in any
way except that the lawyer will rent an office from the law firm
and will share with the law firm a reception area, secretarial space
and library facilities. The lawyer will use separate stationery
and will not be listed on the law firm stationery. The lettering
on the door will indicate the existence of two separate law practices.
In the opinion of the committee, if the lawyer complies in good
faith with the requirements of DR 4-101 and DR 5-101 (A), the lawyer
and the law firm may make the arrangement described above. DR 4
1-1 requires that the lawyer exercise reasonable care to prevent
the lawyer's employees and associates, as well as others whose services
are utilized by the lawyer, from disclosing or using confidences
or secrets of a client. The lawyer and the law firm should be particularly
sensitive to this requirement and establish office procedures that
will assure that confidence or secrets are maintained. The lawyer
and the law firm also should explain fully the relationship to,
and obtain the consent of, their clients to continue to represent
adverse interests in the pending lawsuits and to represent adverse
interests in future matters.
After carefully considering each of the foregoing opinions and the
rationales thereof, as well as the economic realities of today's
solo practice, we are persuaded that Opinions No. 75-13
should be modified.
We now hold that lawyers who maintain separate and independent practices
but share certain office facilities, including reception area, conference
rooms, library, computer systems and receptionist and secretarial
personnel, may represent adverse parties so long as the following
precautions are met:
1. There shall be no common access to the
case files;
2. There
shall be no common access to any computerized data relating to the
case;
3. No
secretary shall be allowed to work on the case for both parties;
4. All common employees shall be informed
of the adverse representation and the extreme sensitivity to the
maintenance of confidentiality; and
5. Each client shall give his/her consent
to the adverse representation after full disclosure of all facts
relating to the common practice area.
It must be stressed that while these rules may not always be easy
to apply and enforce, they are extremely important to avoid the
appearance of impropriety.
CONCLUSION
Lawyers who maintain separate and independent practices but share
certain office facilities, including reception area, conference
rooms, library, computer systems, and receptionist and secretarial
personnel, may represent adverse parties so long as the following
precautions are met:
1. There shall be no common access to the
case files;
2. There
shall be no common access to any computerized data relating to the
case;
3. No
secretary shall be allowed to work on the case for both parties;
4. All
common employees shall be informed of the adverse representation
and the extreme sensitivity to the maintenance of confidentiality;
and
5. Each
client shall give his/her consent to the adverse representation
after full disclosure of all facts relating to the common practice
area.
89-2
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