The Blurred Boundaries of Office Sharing: Officemate and Co-Defendant?
The daily practice of law comes with many challenges, not the least of which is the bottom line. Attorneys want to provide their clients with the best possible representation and still be able to pay their own bills. One of the methods to address this juxtaposition is sharing office space. In today’s legal market, attorneys share space with other attorneys, various types of professionals, or anyone able to rent the office next door. There are many benefits for practitioners in sharing office space beyond saving on rent. The shared office environment provides social interaction with other attorneys, cost-saving benefit of sharing office equipment and allowing attorneys to vent about challenges with clients or seek advice on how to deal with a client representation. However, with those benefits may come a heightened risk of legal malpractice claims from clients and from non-clients.
Consider the Client’s Perspective
Attorneys have a clear understanding that their law office is a separate business entity from the attorney in the law office next door in a shared space office. Attorneys know they have separate client trust accounts, operating accounts, employee payroll, and insurance. But what is clear to the attorneys likely is not obvious to a prospective or current client. It is the client’s understanding and perspective that will matter in a claim of legal malpractice. When taking steps to avoid any confusion as to who is representing a client, consider the client’s perspective and experience with the attorney representing them and other attorneys in the shared office space.
How did the prospective client come into contact with his/her attorney? Was it an advertisement that complied with ABA Model Rules of Professional Conduct 7.1 (Communication Concerning a Lawyer’s Services) and 7.2 (Communication Concerning a Lawyer’s Services: Specific Rules)? Did the client find the attorney on a consumer website that clarified which attorneys make up the law firm? Did the client find a unique website for the law firm that listed the attorneys in practice? When the prospective client called the law firm, was the phone answered with a generic “Law Firm” or with “Law Offices of Larry Lawyer”?
When the prospective client first visited the shared office space, did they see signage that clarified that separate law offices were in the shared space? Was there signage in the lobby that listed the separate entities rather than “Law Offices”? When assessing the image being presented to prospective clients, the attorneys need to “step into the shoes of the client” and consider what they see and experience when dealing with attorneys in the shared office space.
Shared Office Spaces May Implicate Several Model Rules of Professional Conduct
It is essential that clients understand who is and is not involved in their representation. A prospective client may look around a busy office and agree to representation due to their misunderstanding of who is representing them. The prospective client may feel more assured in hiring a law firm with multiple attorneys rather than a solo practitioner. It is the responsibility of the attorney to make sure the client understands who is representing them, and the terms of that representation should be documented in a clearly-written engagement agreement.
If an attorney goes beyond the engagement agreement and decides without express client authorization to discuss his or her client’s case with an unaffiliated officemate, “Paul down the hall,” the disclosing attorney is risking a lot of problems. Depending on the circumstances, unauthorized conversations with unaffiliated cotenant lawyers could waive the attorney-client and work product privileges, create a conflict of interest, or even violate the ABA Model Rules of Professional Conduct. For example, see ABA Model Rule of Professional Conduct Rule 1.6 (a lawyer generally may not reveal information about the representation without the client’s consent, and the lawyer must takes reasonable efforts to prevent inadvertent disclosure), and Rule 1.2 (a lawyer may take only such action as the client implicitly authorizes, and the client must give informed consent for any limitation on the scope of that attorney’s representation). The attorney also could be sending the client the wrong message about who really is involved in the case. For instance, if the attorney recommends a course of action and comments that s/he discussed that recommendation with “Paul down the hall,” who agrees, the client may be justifiably confused about Paul’s involvement in the case.
