CBA Record September-October 2023

that alone should not result in lawyers being found to be “associated in a firm” together. However, even in such conversa tions, lawyers should exercise caution not to reveal confidential client information. Advertising & Communications Office-sharing lawyers must also take care to clearly communicate the nature of their relationship to each other, both to clients and prospective clients, and to the public at large. This principle impli cates our obligations under the advertising rules and our obligation to be honest and not misleading. Formal Op. 507 points to Comment [7] of ABA Model Rule of Pro fessional Conduct 7.1 to make the point that lawyers cannot imply or hold them selves out as practicing together in a firm when that is false or misleading; in Illinois, that prohibition is found in IRPC 7.5(d). The opinion also notes that office-sharing lawyers should use separate business cards, letterhead, directory listings, office signs, firm names, and advertisements, to not make a public suggestion that the separate and distinct law firms are formally asso ciated with each other. In short, lawyers who share space but are not in the same law firm must “take reasonable measures to ensure that clients are not confused about their associations with the other lawyers practicing in the immediate area.” And any publicly-facing communications should leave the impression that any sepa rate firms are not affiliated with each other. While Formal Op. 507 is not particu larly groundbreaking for most attorneys, it does serve as a good reminder of both our ethical obligations and basic business hygiene practices and procedures, espe cially for attorneys who do share spaces and staff. And for those lawyers who do share office spaces, the opinion is worth a careful read.

PRACTICAL ETHICS BY TRISHA RICH Office Sharing Arrangements: New ABA Opinion T he American Bar Association has issued new and updated guidance on office sharing arrangements

or other common areas. If client files are stored in shared spaces, they should be always physically secure. Depending on the nature of the practices and the physi cal space, lawyers may want to consider, for example, separate waiting rooms for clients who come into the office. Other potentially appropriate measures to ensure confidentiality might include using pri vacy screens on computers, implement ing “clean desk” policies, using separate computer systems or telephone lines, and engaging in ongoing lawyer and staff training related to these practices. Conflicts of Interest The opinion notes three specific areas related to conflicts that space-sharing law yers should be cognizant of: (1) avoiding imputation of conflicts, (2) acquiring new matters with clients who are adverse to clients of the other lawyers in the shared space, and (3) consulting with other law yers in the shared space. Formal Op. 507 first cautions that the imputation of conflicts generally depends on whether lawyers are associated in the same firm, so that lawyers who do not appear to be or who are not in fact pro tecting their separate firm identities are more likely to be found to be “associated in a firm” and thus impute conflicts to one another. Second, the opinion notes that when space-sharing lawyers represent adverse clients, they may have disclosure obliga tions, and may need to obtain informed consent, possibly in writing, from the affected clients. The opinion also cautions against sharing staff across such matters. Finally, the opinion notes that even where lawyers in office-sharing arrangements informally consult each other on occasion,

between lawyers in different firms (July 12, 2023). While many attorneys should find much of the opinion to be intuitive, it is worth briefly reviewing the ethical obliga tions that arise in such arrangements. ABA Formal Opinion 507 starts by noting that office sharing arrangements can arise under many types of circum stances, including lawyers in separate law firms sharing office space, support staff, and equipment; law firms renting unused office space to unaffiliated lawyers; or law yers sharing office suites, receptionists, or conference rooms in a virtual or temporary practice. In the opinion, the ABA purports to set forth the “minimum ethical require ments” for such arrangements, which largely center around three primary ethi cal obligations: confidentiality, conflicts of interest, and communications concerning a lawyer’s services. An overarching theme of the opinion reminds us of our duties to make sure those we supervise abide by our ethical standards as well. Confidentiality Lawyers who share a space but who are not members of the same firm must maintain confidentiality of their clients’ informa tion. This can be especially tricky where these lawyers also share staff members, such as receptionists or paralegals. While the simple act of sharing office space does not mean that lawyers are automatically sharing confidential client information, safeguards must be put in place to ensure such disclosures do not occur. Lawyers and staff should not discuss confidential information in shared spaces, or leave files in shared conference rooms, workspaces,

Trisha Rich is a litigator and legal ethicist at Holland & Knight and the President of the Association of Profes sional Responsibility Lawyers, the national bar association for legal ethicists. You can reach her at trisha.rich@hklaw.com, on LinkedIn at linkedin.com/

in/trisharich, or on Twitter @_TrishRich.

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