As published in The Daily Report

The costs of running a practice can be significant. From staff salary and filing fees to rent and office supplies, overhead for a law practice is rarely cheap. While some attorneys deal with these costs by starting law firms with many partners who all bear the costs, some solo practitioners are exploring the millennial-friendly trend of obtaining coworking space or sharing office space with other professionals or attorneys.

While such an approach is becoming more commonplace, it can create some risk for practitioners and even confusion for clients. For example, if David Smith and Susan Jones are solo practitioners who rent an office space together, they may choose to employ a single receptionist to greet clients. Thus, a client of David’s in the office may see signage that identifies Susan Jones as another lawyer in the same space. David’s client may even meet Susan or see that their receptionist handles both their files.

If David then misses a filing for his client, that client may similarly blame Susan Jones for failing to protect the client’s interests. After all, they’re part of the same law firm, aren’t they? In that situation, a court may look at whether the client had a reasonable belief that its interests were being represented by Susan as well as David. Indeed, courts often examine this issue from the perspective of the client, so the surroundings of the office and the available information to the client could create risk for Susan.

Thus, it can be helpful for attorneys sharing office space with other attorneys or even other businesses to take steps to ensure that they are keeping their practices separate, both in practice and outwardly. Here are some tips to consider. 

Signage and Advertising

When an attorney shares office space with other attorneys, the risk is that the client may reasonably believe that he or she is retaining a partnership of all attorneys in the office, instead of only a solo practitioner or a certain group of attorneys within the office. Thus, under a general partnership theory, the client may be able to allege a claim against all attorneys sharing the office space based on the conduct of any one attorney.

Compounding the risk of this unexpected liability is the likelihood that, for such claims, there may not be insurance coverage available. Indeed, legal malpractice policies may not provide coverage for a claim against someone like Susan Jones who is allegedly vicariously liable for the purported failings of David Smith.

One way to counteract this risk is to ensure that signage and advertising materials make clear to the outside world that an attorney sharing an office space with another is still a separate practice. Indeed, if two attorneys share a suite, it may be practical to have the signage read “The Law Office of David Smith” and “The Law Office of Susan Jones.” Some attorneys will also include disclaimers on signage that indicate that the two law offices are separate entities and not affiliated with each other.

In addition to being helpful to clients, attorneys may have obligations under the ethical rules to ensure that their signage and other materials are not misleading to the public regarding whether the attorneys who share office space also share in partnership. Indeed, Rule 7.1 of the ABA Model Rules of Professional Conduct provide that “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” Comment [5] to Rule 7.1 specifies that firm names are “communications concerning a lawyer’s services,” and comment [7] cautions that “[l]awyers may not imply or hold themselves out as practicing together in one firm when they are not a firm…because to do so would be false and misleading.” 

Firm Materials and Operations

As noted above, office-sharing can be completely ethical. However, attorneys can take steps to minimize the risks inherent in sharing office space with others. For example, attorneys may consider using specific disclaimers clarifying that attorneys are part of separate law practices. Many attorneys who share office space also will use their engagement letters to specifically identify the attorney retained and to confirm that the attorney-client relationship does not extend to other attorneys sharing the space.

Attorneys sharing office space also can consider steps that confirm outwardly their independence from others in the same office. For example, attorneys can take steps to ensure that they take calls with clients in private, rather than in shared common areas with other attorneys. This helps maintain the privilege and confidences of the relationship, but may also serve as extrinsic evidence that the others in the suite do not share in that privilege or those confidences.

Separate Systems

Although attorneys can share the same building and even the same receptionist, most attorneys in that situation will not share the same filing cabinets or storage areas but instead will segregate files from other law practices or companies in the office. Attorneys may also take steps to ensure that mail or other confidential communications are directed to and opened by only those persons affiliated with the law practice. This can be helpful both for outward appearances (and confirmation of the attorney’s independence) but also to help the attorney keep their obligation to maintain client confidences.

If an attorney in a coworking space shares computer systems or a network with others in the space, the attorney can consider steps that would restrict access to the system to only that attorney. 

Some practitioners will train staff and others in the office how to answer typical questions the staff might be asked that reinforce the fact that the law practice is distinct from others within the office space. 

Taking these precautions can help attorneys enjoy the benefits of keeping overhead down by sharing office space and minimizing the risks—and headaches.