Ohio Board Advisory Opinion Op. 22-11

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

OPINION 2022-11
Issued October 7, 2022
Withdraws Adv. Op. 1991-09

Lawyers Sharing Office Space, Nonlawyer Staff, and Dividing Fees

SYLLABUS: A lawyer may share office space, computer equipment, and support staff
with other lawyers in an office sharing arrangement. A lawyer in an office sharing
arrangement may divide fees with another lawyer in the office subject to the Rules of

Professional Conduct.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.

e> Ohio Board of Professional Conduct

65 SOUTH FRONT STREET, 5™! FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
HON. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2022-11
Issued October 7, 2022
Withdraws Adv. Op. 1991-09

Lawyers Sharing Office Space, Nonlawyer Staff, and Dividing Fees

SYLLABUS: A lawyer may share office space, computer equipment, and support staff
with other lawyers in an office sharing arrangement. A lawyer in an office sharing
arrangement may divide fees with another lawyer in the office subject to the Rules of

Professional Conduct.
APPLICABLE RULES: Prof.Cond.R. 1.1, 1.5, 1.6, 5.3
QUESTIONS PRESENTED:

1) Whether there are restrictions on the division of fees among lawyers who
have separate law practices in the same building, but who collaborate on legal

matters;

2) Whether in order to protect information related to the representation of a
client, lawyers with separate law practices in the same building must
maintain separate filing and computer systems inaccessible to other lawyers

and nonlawyer staff;

3) Whether it would be proper for lawyers who maintain separate law practices

to share nonlawyer staff.

Op. 2022-11 2

OPINION:

Many lawyers choose to practice law in a shared office arrangement that includes
the sharing of nonlawyer staff, resources, and expenses. These arrangements may lead
to opportunities for the lawyers to consult among themselves or divide fees on client

matters in which the lawyers decide to co-counsel.
Division of Fees and Lawyer Collaboration

The Rules of Professional Conduct do not prohibit lawyers in separate legal
practices from dividing fees or from collaborating on legal matters as co-counsel.
Because the lawyers are not in the same firm, they may only divide fees pursuant to
Prof.Cond.R. 1.5(e)(2). The rule describes the division of fees in proportion to the
services performed or in circumstances when each lawyer assumes joint responsibility
for the representation. Fees can be shared by lawyers not in the same firm and in a
shared office arrangement only if four conditions are satisfied: 1) the division of fees is
proportional to the services performed by each lawyer or the lawyer assumes joint
responsibility for the representation and agrees to be available for consultation with the
client; 2) the client has given his or her written consent; 3) a written closing statement is
signed by the client and each lawyer; and 4) the total fee is reasonable. Prof.Cond.R.
1.5(e). It is recommended that each lawyer and client retain a copy of the completed
document signed by all parties. Adv. Op. 2016-11. See also R.C. 4705.15 (written fee

agreement in contingent cases.)

In addition to dividing fees as co-counsel, it is not uncommon for lawyers in a
shared office arrangement to occasionally and informally consult or assist one another
about a matter without billing time to a specific client. This type of informal
consultation does not result in the lawyers constituting a law firm. Prof.Cond.R.,
Terminology, cmt.[2]. However, when a lawyer consults with another lawyer, he or she
must be careful not to divulge confidential client information that may reveal the
identity of a client or privileged information. “A violation of Rule 1.6(a) is not avoided
by describing * * * a ‘hypothetical,’ if there is a reasonable likelihood that a third party
may ascertain the identity or situation of the client from the facts.” See ABA Formal
Opinion 480 (March 6, 2018).

Op. 2022-11 3

Maintaining Confidential Client Information

Because of the nature of a shared office arrangement, lawyers must always be
mindful of the duty to maintain the confidentiality of information related to the
representation of clients. Prof.Cond.R. 1.6. Thus, it is imperative that lawyers in a
shared office arrangement act competently to protect the confidentiality of clients’
information. Prof.Cond.R. 1.6, cmt. [18]. Lawyers should use reasonable efforts to
prevent an inadvertent or unauthorized disclosure or access to information related to
the representation of a client and exercise precautions to prevent information from
coming into the hands of unintended recipients, including other lawyers and staff in the
shared office space. Prof.Cond.R. 1.6, cmt.[18],[19].

Inadvertent or intentional access to confidential client information by all lawyers
in an office sharing arrangement may lead to the conclusion that the lawyers constitute
a single law firm. See Winblad v. Deskins, 150 Ohio App.3d 527, 2002-Ohio-7092 (2d.
Dist.) (an appearance the lawyers shared access to confidential client information and
other factors led to the conclusion the lawyers constituted one firm for disqualification
purposes.) Steps recommended to be taken by lawyers in a shared office arrangement
to protect client information and avoid the appearance of constituting a firm include 1)
segregating and securing electronic and physical client files from other lawyers’ filing
systems; 2) maintaining all in-person, telephonic, electronic, and _ written
communications with or about clients in a manner and method to prevent inadvertent
disclosure; and 3) ensuring that staff and lawyers avoid communications with or about
clients in waiting and common areas. In addition, each lawyer in the office sharing
arrangement should instruct and train his or her nonlawyer staff on the procedures and

processes that are to be followed to safeguard confidential client information.
Prof.Cond.R. 5.3, cmt.[1].

Computer Systems

A shared office arrangement may consider the use of shared computer and
server network if adequate safeguards are put in place. N.Y. St. Bar Ass’n. Ethics Op.
939. In order to prevent unauthorized access to client information, each computer
connected to a shared network should be secured by individual credentials and other

security measures to prevent lawyers or staff from accessing the data and files on a

Op. 2022-11 4

network belonging to others. If practicable, access to administrative rights to the server
or computers should be limited by the use of independent information technology
contractors. The lawyers should ensure that any contractors with administrative rights
are given adequate instruction and supervision concerning their obligation not to
disclose information related to the representation of clients. Prof.Cond.R. 5.3, cmt.[2].
Lastly, all lawyers in the law firm must maintain the requisite technological competency
to ensure the confidentiality of their files and data on a shared server system is
maintained. Prof.Cond.R. 1.1, cmt.[8].

Sharing of Nonlawyer Staff

Nonlawyer staff in a shared office arrangement may be assigned to multiple
lawyers. The nonlawyer staff must understand that a lawyer’s duty of client
confidentiality applies equally to the staff when under the supervision of a lawyer.
Prof.Cond.R. 5.3(b). Consequently, shared staff cannot disclose client related
information with other staff and lawyers, unless their respective lawyers are co-
counseling on a matter. If two lawyers in a shared office arrangement are representing
adverse clients in a matter, the same nonlawyer staff person should not be assigned to
both lawyers during the representation. Ky. Ethics Op. E-406 (November 1998). When
lawyers choose to share nonlawyer staff, the Board recommends a written procedure be

developed for the nonlawyer staff to identify potential conflicts.