What are the ethics rules for Colorado lawyers who share office space or use a virtual office, especially around conflicts, client confidences, and firm names?

Plain-English summary

Opinion 89 (adopted September 21, 1991; revised and reissued March 12, 2018) addresses the ethics of lawyers sharing office space and, in the revised version, lawyers using "virtual" offices (working mostly from home or another location while renting shared space for client meetings or depositions). The Committee groups the issues under three headings: conflicts of interest and the duty of loyalty, preservation of client confidences, and the use of names and letterheads.

On conflicts, the opinion concludes that whether office-sharing lawyers' conflicts are imputed to each other under Rule 1.10 turns on whether they are a "firm" under Rule 1.0(c), which is fact-specific: two practitioners who merely share space and occasionally consult ordinarily are not a firm, but lawyers who present themselves to the public as a firm or have mutual access to each other's client information may be treated as one. To reduce the risk of being viewed as a firm, the opinion says lawyers should keep their practices separate, restrict access to each other's files and to shared computers, phones, and equipment, avoid unnecessary financial entanglements, and where a conflict risk exists, disclose the arrangement and obtain informed consent confirmed in writing. It also flags that shared financial arrangements (joint leases, landlord-tenant relationships between the lawyers) can create leverage that compromises independent judgment under Rule 1.7.

On confidentiality, the opinion concludes that office-sharing and virtual-office lawyers must take concrete measures to prevent inadvertent disclosure of information relating to a representation (Rule 1.6) given shared reception areas, staff, file storage, and equipment, and must make reasonable efforts to ensure nonlawyer staff conduct is compatible with those duties (Rule 5.3(b)). On names, the opinion concludes that under Rules 7.1(a) and 7.5 lawyers may not use signs, letterhead, business cards, or directory listings that falsely suggest a partnership or firm where none exists, and that virtual-office lawyers must not suggest they regularly staff a physical office they rarely use. The opinion works through four illustrative scenarios (same-practice-area lawyers opposing each other, different practices but shared staff, sole practitioners covering for each other, and a lawyer-landlord/lawyer-tenant pair).

In practice

The opinion holds that, under the Colorado Rules as the Committee read them, office-sharing and virtual-office lawyers may share facilities but should take specific steps so they are not treated as one firm for imputed-conflict purposes under Rules 1.0(c) and 1.10: keeping practices separate, restricting access to files and shared equipment, and avoiding unnecessary financial entanglement. It holds that where a conflict risk exists the lawyers should disclose the arrangement and obtain each affected client's informed consent, confirmed in writing, and that where lawyers agree to cover for one another, the retainer should obtain the client's consent to that coverage and to the resulting information sharing. It holds that the lawyers must protect client confidences through measures like separate phone systems, careful office layout, restricted access to electronic devices, and limits on shared staff, and that their signs, letterhead, and listings must not falsely imply a partnership or, for virtual offices, a regularly staffed physical office.

Common questions

Q: Can two Colorado lawyers share an office and still represent opposing parties?

A: Sometimes, with safeguards. The opinion concludes office-sharing lawyers may represent clients with conflicting interests only if they are not treated as one firm (or each affected client gives informed consent, confirmed in writing) and each lawyer can adequately represent the client; same-practice-area lawyers facing each other present the greatest risk.

Q: When are office-sharing lawyers treated as a single "firm"?

A: When the facts make them look or function like one. The opinion concludes that under Rule 1.0(c), comment [2], lawyers who merely share space and occasionally consult are usually not a firm, but those who present themselves to the public as a firm, conduct themselves as one, or have mutual access to each other's client information may be, which triggers imputed disqualification under Rule 1.10.

Q: What confidentiality steps does office sharing require?

A: Concrete separation measures. The opinion concludes the lawyers should restrict access to files and shared computers, phones, and copiers, arrange space so staff cannot overhear other lawyers' client matters, avoid sharing staff where possible, and supervise nonlawyer staff under Rule 5.3(b); similar measures apply to virtual offices where family or others may have access.

Q: Can office-sharing lawyers put both their names on the door or letterhead?

A: Not in a way that implies a partnership. The opinion concludes that under Rules 7.1(a) and 7.5, office-sharing lawyers may list their names under "law offices" but must not use names, signs, or joint letterhead suggesting they practice together as a partnership or professional corporation when they do not.

Background and rules framework

The opinion interprets Colo. RPC 1.7, 1.8, and 1.9 (loyalty and current- and former-client conflicts), Rule 1.0(c) and its comment [2] (definition of "firm" as applied to office-sharing lawyers), Rule 1.10(a) (imputation of conflicts within a firm), Rule 1.6(a) (confidentiality), Rule 5.3(b) (supervision of nonlawyer assistants), and Rules 7.1(a) and 7.5(a), (d) (false or misleading communications and firm names). It also cites the Committee's earlier opinions on associates and office sharing (Formal Opinions 8, 9, and 50) and Colorado and out-of-state authority on imputed disqualification.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.7, 1.8, 1.9(a) / Model Rules 1.7, 1.8, 1.9 (conflicts of interest)
• Colo. RPC 1.0(c) and 1.10(a) / Model Rules 1.0, 1.10 (definition of "firm"; imputed disqualification)
• Colo. RPC 1.6(a) / Model Rule 1.6 (confidentiality)
• Colo. RPC 5.3(b) / Model Rule 5.3 (responsibilities regarding nonlawyer assistants)
• Colo. RPC 7.1(a), 7.5(a), 7.5(d) / Model Rules 7.1, 7.5 (false or misleading communications; firm names)

Cases:

• Allen v. Dist. Court, 519 P.2d 351 (Colo. 1974), loyalty and independent judgment in the lawyer-client relationship
• Dean v. Am. Sec. Ins. Co., 429 F. Supp. 3 (N.D. Ga. 1976), disqualification risk for closely involved office-sharing lawyers
• McMahon v. Seitzinger Bros. Leasing, Inc., 506 F. Supp. 618 (E.D. Pa. 1981), disqualification where lawyer shared space with firm representing the adverse party

Other opinions cited:

• CBA Formal Op. 50: definition of "associates" as applied to lawyers
• CBA Formal Ops. 8 and 9: office sharing and associates
• CBA Formal Op. 99: even a client's identity may be information relating to the representation

See also

• ABA Formal Op. 498: Virtual Practice
• CA Op. 2012-184: Virtual Law Office and the Cloud
• ABA Formal Op. 495: Lawyers Working Remotely

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_89_2011.pdf