The pandemic changed the way many Americans, including lawyers, conduct business.  Although most lawyers have returned to the office full-time, hybrid work schedules and remote depositions or court appearances remain commonplace.  This has resulted in many firms or lawyers reevaluating the need for (and substantial cost of) traditional physical office spaces.

Simple overhead to rent space for a law practice can include the costs of commercial leases, office supplies, and more.  Firms with a number of lawyers can share the burden of such costs, but other solo practitioners or small firms are considering whether there is another option.

Some lawyers are seeing the appeal of co-working spaces or sharing an office space with other lawyers or professionals.  Indeed, co-working spaces can be an appealing solution as lawyers develop new ways to operate following the pandemic.  However, although these arrangements are becoming more common, they can still create some risks for practitioners.

Here are some tips to consider when deciding to use an alternative office space.

Minimizing Risks When Sharing an Office Space

Sharing an office space with another lawyer or professional, even when not part of the same law practice, can be a completely ethical (and financially beneficial) endeavor.  However, there are some ethical boundaries to consider when sharing office space.

One of the most significant risks when a lawyer shares office space with others is that a client may reasonably believe that the lawyer is part of a firm or partnership with the other lawyers or professionals in the office.

There is a risk that a client could bring a claim against unaffiliated lawyers in a shared office space, alleging a theory of general partnership, and asserting a claim against all lawyers sharing the office space based on the conduct of any one lawyer.  Courts typically look at this issue from the perspective of what a client could reasonably believe.

If the lawyers in the shared space do not make it clear that they are separate, independent practices, they could face risk of a claim, or, perhaps more damaging, they could face a risk of losing their insurance coverage for that claim. 

Indeed, the language of a legal malpractice policy may not provide coverage for a claim brought on a vicarious liability theory, or the insurance company could even accuse the lawyer of misrepresenting or omitting facts on an application if the lawyer did not confirm the intent to share office space. 

To help minimize these risks, lawyers can consider using specific disclaimers in correspondence (or displaying disclaimers in the office) clarifying that the lawyers are part of separate law practices.  Lawyers who share an office space can also use their engagement letters to confirm the precise lawyer retained and to note that the lawyer-client relationship does not extend to other lawyers sharing the physical space.

Further, lawyers sharing an office space can consider steps that outwardly demonstrate their independence from others working in the same office.  For instrance, lawyers may limit the use of common spaces for business purposes or take calls with clients in a private setting, rather than in shared common areas with other lawyers.  Such behavior could serve as extrinsic evidence that the others in the suite do not share in any attorney-client privilege or similar confidences.

Signage and Firm Materials

Another way to outwardly demonstrate to the public that lawyers are not affiliated in partnerships is to use signage.  There could be signs in the physical space that confirm that there are, for example, two separate law offices operating out of the space, e.g., “The Law Office of Sarah Smith” and “The Law Office of Christopher Jones.”  Lawyers can consider using disclaimers on signage to indicate that the two law offices are separate entities and not affiliated with each other. 

These considerations may additionally be required under the applicable ethical rules that prevent lawyers from misleading the public.  In the ABA’s Model Rules of Professional Conduct, Rule 7.1 provides 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 goes on to say that a firm’s name, letterhead, and professional designation are communications that cannot be false or misleading.

Comment [5] also indicates that firm name is misleading “if it implies a connection with … a lawyer not associated with the firm.”

Shared Spaces, by Separate Systems

Although lawyers can share the same building and even the same receptionist while still complying with their ethical obligations, lawyers can also take steps to confirm that their practices are separate from any others in the shared space.  One way to do this is to store files separately.  Most lawyers sharing an office space will not share filing cabinets or storage areas with others. 

Lawyers may also take steps to ensure that mail or other confidential communications are addressed to and opened by only those individuals affiliated with the law practice.  These policies can be helpful both for outward appearances, but also to help the lawyer keep his or her obligation to maintain client confidences.

A lawyer in a co-working space can also implement policies and programs to restrict access to any online system or network that stores client confidential information.  In addition, some practitioners may 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. 

Adhering to these precautions can help lawyers enjoy the cost-saving benefits of shared office spaces while also minimizing the risks that can accompany these shared office arrangements. 

*This article is republished with permission of ALM Media, Inc.