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A very recent Legal Ethics Opinion of the D.C. Bar (LEO 303) addresses the topic of office sharing, one that should be of broad interest in these days of strategic alliances, “virtual law firms,” and multidisciplinary practice. This subject has also been taken up by the bars of eight other jurisdictions, including Maryland and Virginia. It applies to more than just traditional office-sharing situations in which otherwise unaffiliated lawyers agree to share space for economic reasons or a sole practitioner or small firm rents some of a large firm’s overflow space. LEO 303 first analyzes the requirements of Rule 7.1 that lawyers take pains not to mislead the public as to the nature of multiple-lawyer offices and the services they perform. If the relationship does not involve a genuine affiliation, lawyers must be careful not to imply otherwise. Implications of affiliation can arise through signage (or lack thereof), advertising, or simply the manner in which the common space is configured, the way the receptionist answers the phones, or the way the lawyers introduce one another to members of the public. Clearly, if the signage in the shared space or the lawyers’ advertising refers to “Arnolt, Broback & Covingdon,” the public would be very likely to conclude that there exists an affiliation among the lawyers. The same would hold true for “Law Offices of Arnolt, Broback & Covingdon.” But what about a sign that read: LAW OFFICES James Arnolt Matthew L. Broback Jr. E. Thomas Covingdon Such signage would not seem to imply any formal relationship, but some people might read such an implication into it. Most people would probably agree that to introduce a space-sharing lawyer as one’s “partner” or even “associate” is misleading, and that “neighbor” is probably safe. But “colleague”? That’s hard to say. The bottom line is that if, despite all efforts to avoid it, confusion nevertheless results, the attorneys must take affirmative steps to dispel the confusion by explicitly disavowing any affiliation among the attorneys in the shared space. Client confidentiality may also pose problems. Under RPC 1.6, the office staff, as well as the lawyers themselves, must be sensitive to the possibility of a compromise of confidentiality in office-sharing arrangements. Attorney files and storage space must be kept separate, and confidential materials should not be kept in unlocked or shared spaces where they might be accessed by unauthorized people, inadvertently or otherwise. Computerized records, work files, e-mail, word-processing systems, and fax lines should also be kept separate in order to avoid inadvertently revealing confidential materials or information. All these precautions, admittedly, tend to lessen the economic advantages of office-sharing, but the strictures of ethics require them. Perhaps most important, employees in the shared space — including, of course, the attorneys themselves — must be very careful to avoid discussions or other communications involving confidential information that might expose such information to access by unauthorized persons. Lawyers especially must avoid the temptation to treat their space-sharing colleagues as if they were partners, regardless of how natural or convenient it may seem to “bounce ideas off” or “cover for” one another. This is not easy, because lawyers in these situations tend to become friendly with each other, and the reserve necessary to protect confidentiality can be eroded. The potential for conflicts to develop between lawyers within a shared space must also be recognized. Because of the proximity of the individual lawyers’ practices within the shared space, it may be difficult for those lawyers to represent adverse interests without violating conflict of interest rules. The sanctity of the loyalty/confidentiality ethic in this country is regarded by our British cousins as greatly overdone. As any aficionado of the Horace Rumpole tales well knows, it is not at all unheard of for British barristers from the same chambers to represent both sides in a given suit, perhaps with a third learned member of chambers sitting on the case as judge or arbitrator. As Justice Rix observed in Laker Airways v. FLS Aerospace Ltd., et al.: “[P]racticing barristers are prohibited by the rules of their profession from entering partnerships or accepting employment precisely in order to maintain the position where they can appear against or in front of one another. If it were otherwise, public access to the bar would be severely limited … . Such an arrangement would be unthinkable in this country because of the “appearance of impropriety,” a concept that the British believe gives rise to “endless arguments … where almost any connection (however remote) has been put forward to challenge the ‘independence’ of an arbitrator.” Further in-depth discussion of these issues can be found on the Washington, D.C., Bar’s Web site at http://www.dcbar.org/, under “Ethics.” The subject is also relevant to lawyers or firms that may have strategic alliances with other firms or may farm out certain administrative, accounting, or other functions. The problems presented by multidisciplinary practice are also obvious. Indeed, the emergence of multidisciplinary practice in Britain has occasioned a change in traditional British thinking on this subject. The economic advantages of office sharing and the competitive advantages of “virtual firms” collaborating on client matters that might be beyond the capacity of any one of them are clear. So are the benefits of mutual referrals between space-sharing lawyers or strategic allies. But those advantages are not limitless, and participants in such creative undertakings must ensure that those benefits are not purchased at the cost of ethical violations. LEO 303 thus commends itself to all lawyers who have or plan to have relationships with other lawyers, firms, or entities that may give rise to such violations. James P. Schaller, a partner at Washington, D.C.’s Jackson & Campbell, is a former chair of the D.C. Court of Appeals’ Committee on Unauthorized Practice. He is a member of the Board of Regents of the American College of Trial Lawyers. His e-mail address is [email protected].

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