Ethical Issues with Attorneys Sharing Office Space
By Pamela Banta, paralegal student
When you consider the state of the economy, it’s not hard to imagine that it really does affect everyone—attorneys included. Even in good economic times, it is prudent save money where you can, and sharing office space may be a good idea. Many attorneys, especially ones practicing on their own, are using shared office space with either other attorneys or other businesses. This provides great savings on paying for office space, but also creates some interesting ethical issues that need to be considered. If you already share office space or are considering it, this article has some things to consider. A written plan is an important step to be able to outline how to avoid ethical issues. (William I. Weston, Ethics Concerns In Shared Office Space, Volume 20, Number 5 July/August 2003).
The need to avoid the appearance of a partnership is vital (see Utah Ethics Op. 86 [1988]). Conflict of interest needs to be considered. That is at least as important in this situation as in a law firm with several clients because of the risk of inadvertent discovery of information. Client confidentiality is probably the largest concern with shared office space. Often when two or more business entities are sharing office space, they share the receptionist, maybe a secretary or two, the copy room and filing areas and the conference room. All these shared things can create ample opportunity for breaches in client confidentiality. There are steps that can be taken to eliminate or at least greatly reduce the potential breaches. Caution should also be taken even in the listing of attorneys on a building directory so that it does not appear that there is a partnership where there is not. (Utah Bar Journal, Practice Pointers: Ethical Considerations for Office Sharing, by Kate A. Toomey,
Deciding with whom you should share office space with is something you need to investigate in your own state laws. In Kentucky, it was, at one time, against the law to share with a non-lawyer. That has been reversed and is now allowed. The most important thing to watch is to make sure that the other business is not a feeder business to the lawyer. (Del O’Roark, Sharing Offices: The Ethical, Risk Management, and Practical Considerations). When sharing with other lawyers, you need to make sure that it is clear to your clients and anyone walking off the street, that it is not a partnership. You shouldn’t put the two names of the attorneys together anywhere—on the sign (example: Smith and Young, attorneys at law). That may imply that there is a partnership that does not exist. I recently visited a law office that shares office space and they actually had two separate receptionists, as well.
The integrity of the person you share office space with is also very important. Knowing you can trust the other tenant will help avoid being locked out of your office if the other person has adverse dealings with the IRS (O’Roark). You don’t want to share office space with someone is participating in under-handed business dealings, regardless of what their business is. You may want to get some character references before signing an agreement to share office space, including people that the person has worked with before, so you don’t end up with someone that you don’t get along with or that inserts him or herself into your business or talk so much you can’t get your work done.
Conflict of interest is a very important consideration.
“The requirements of D.C. Rule 1.7, dealing with general conflicts of
interest, and the other conflict of interest rules are imputed to other
lawyers “associated with a firm” under D.C. Rule 1.10. Comment [1]
to Rule 1.10 provides that “[T]wo practitioners who share office
space and occasionally consult or assist each other ordinarily
would not be regarded as constituting a firm. However, if they
present themselves tothe public in a way suggesting that they are a
firm or conduct themselves as a firm, they should be regarded as a
firm for purposesof the Rules.” (DC Bar Opinion 303) (Also see
ABA Rules of Professional Conduct 1.7 and 1.10).
A good review of your own state laws will give you guidance for this important issue. If, in fact, your rules are the same as the ABA Rules, then you need to treat conflict of interest the same as if you and those you share office space with as though you were a partnership. That would involve sharing the information of who your clients are with others in the office space. That leads to other issues of confidentiality.
Confidentiality issues are the same as in a law firm, except the “need to know” is much more limited. If you consult with another attorney sharing office space, you need to be extra careful about any identifying information. Sharing a receptionist is commonly accepted, but sharing of any other staff is discouraged. (O’Roark). If you share an area where filing cabinets are kept, they need to be locked to avoid the potential of a breach of confidentiality. Sharing a copy machine requires diligence to avoid documents or other identifying information being left in the open. (Opinion 303). Another consideration is the buffer in a copy machine that can hold thousands of documents. Clearing the buffer on occasion is a great idea to avoid confidential information being in a location unauthorized people may have access to it. All of these issues exist in any law office, but must be more carefully considered in sharing office space with unaffiliated attorneys or other businesses.
Instructing shared office staff about the extreme need of confidentiality is vital. Make sure they understand the ethical and legal implications if that confidentiality is breached. A good idea would be to have them sign a confidentiality agreement. Confidentiality would be good to include in your office sharing agreement, as well, because others in the office who are likely to see clients as they come and go. If the client happens to be recognized by someone in the office, it is important for them to know they can’t share that information.
The only financial connection between the entities can be those things set up for shared office space. That may include the office rent, a receptionist, phone service, office equipment such as a copy machine, and break room expenses. Any and all other financial considerations need to be completely separated.
Sharing office space is a great solution for attorneys. Conflict of interest, confidentiality and complete, visual, financial, and functionality separation of businesses are vital issues to set up and monitor frequently. If those things are diligently handled, it will be a cost-effective, rewarding experience for all involved.
Resources:
Del O’Roark, Sharing Offices: The Ethical, Risk Management, and Practical Considerations,
William I. Weston, Ethics Concerns In Shared Office Space, Volume 20, Number 5 July/August 2003 http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/weston.html
Utah Bar Journal, Practice Pointers: Ethical Considerations for Office Sharing, by Kate A. Toomey, http://webster.utahbar.org/barjournal/2006/01/practice_pointer_ethical_consi.html
Utah Ethics Op. 86 (1988)
No comments:
Post a Comment