Can two lawyers who share office space and trade hourly work serve as opposing counsel in an uncontested divorce or testify for each other about reasonable fees?

Plain-English summary

The committee considered a lawyer who rents office space from another attorney, performs research and other services for that attorney on an hourly basis, and at times works with him on cases and divides the fee, while each maintains a separate letterhead that does not show the other. The lawyer asked whether he could ethically (a) serve as attorney of record for the opposing party in uncontested dissolution actions in which the lawyer he rents from represents the initiating party, and (b) execute affidavits or testify about reasonable attorney's fees at that lawyer's request in contested actions.

The committee concluded the inquiring lawyer could ethically do neither. It explained that although the two are not partners, arrangements short of partnership, such as office sharing and trading work, can at some stage create problems akin to those of formal partnership, and the facts cast severe doubt on any notion of complete separateness and independence. Under Canon 9, which prohibits even the appearance of professional impropriety, and Opinion 70-14, a close financial or professional relationship to the lawyers' mutual advantage could involve an appearance of impropriety. The committee found DR 5-101(A) applicable, and concluded that, even though that rule allows client consent after full disclosure, consent would not dispose of the Canon 9 problems on these facts, citing EC 5-2 and EC 5-9.

The committee noted that even "uncontested" dissolutions may involve contested issues, and that the fee-testimony conduct in category (b), with the inquiring attorney serving as an expert witness for the other lawyer, would a fortiori be inconsistent with these principles.

Currency note

This opinion was issued in 1978, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can office-sharing lawyers be on opposite sides of an uncontested divorce?

A: The opinion concluded they may not, because their office-sharing and hourly-work ties create an appearance of impropriety under Canon 9.

Q: Can one of them testify about the other's reasonable fees?

A: No. The opinion concluded executing affidavits or testifying on each other's reasonable attorney's fees would, a fortiori, be inconsistent with the same principles.

Q: Does client consent cure the problem?

A: The opinion concluded that although DR 5-101(A) allows consent after full disclosure, consent would not dispose of the Canon 9 appearance-of-impropriety problems on these facts.

Background and rules framework

The opinion interprets CPR EC 5-2, EC 5-9, DR 5-101(A), and Canon 9. The personal-interest conflict corresponds to Model Rule 1.7 (Florida Rule 4-1.7), and the fee-testimony question corresponds to Model Rule 3.7 (Florida Rule 4-3.7) on the lawyer as witness.

Citations and references

Rules of Professional Conduct:

• CPR EC 5-2; EC 5-9; DR 5-101(A); Canon 9 (Model Rules 1.7, 3.7)

Other opinions cited:

• Florida Ethics Opinions 70-14, 76-41 (since withdrawn); ABA Informal Opinion 995

See also

• FL Bar Ethics Op. 88-15: Dual Professions and Sharing Office Space
• FL Bar Ethics Op. 87-1: Multiple Representation of Codefendants

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-77-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-77-3-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 77-3
February 14, 1978
Advisory ethics opinions are not binding.
If an attorney rents office space from another attorney and performs legal research and other services on an hourly basis for the other attorney, the two may not serve as opposing counsel in uncontested divorce proceedings or execute affidavits or testify for each other concerning reasonable attorney's fees in contested matters.
CPR: EC 5-2, EC 5-9, DR 5-101(A); Canon 9
Opinions: 70-14, 76-41; ABA Informal Opinion 995
Mr. Livingston stated the opinion of the committee:
A lawyer rents office space from another attorney. From time to time, he performs research and other services for that attorney on an hourly basis. On various occasions, the two attorneys work together on cases, dividing the fee earned on such matters on an equitable basis. Each maintains separate letterhead. Neither lawyer shows the other on his letterhead. The inquiry is whether, under the above circumstances, the lawyer can ethically:
(a) Counsel with and serve as attorney of record for the other party in uncontested dissolution actions in which the attorney from whom he rents office space represents the party initiating the action.
(b) Execute affidavits or testify concerning reasonable attorney's fees in contested actions of various types at the request of the attorney from whom the inquiring attorney rents office space.
It is the opinion of the Professional Ethics Committee that the inquiring lawyer cannot ethically do either of the activities about which he inquires. The attorneys do not have a relationship that is a partnership, but there are many different arrangements between lawyers, short of partnership, that reflect close informal understanding. Office sharing, sharing of employees, libraries and other facilities, and general cooperation in various ways are all proper arrangements. At some stage, short of written agreement, these arrangements create problems that are akin to those of formal partnership arrangements.
This opinion is directed to the facts of this particular inquiry. Those facts include the inquiring attorney renting space from, and performing research and other services on an hourly basis for, the other attorney. The facts at least tend to cast severe doubt upon, if not dispel, any notion of complete separateness and independence between the lawyers.
Canon 9 prohibits the appearance of professional impropriety even when none in fact exists. Further, pursuant to Opinion 70-14, the existence, or appearance, of a close financial or professional relationship to the mutual advantage of the lawyers could, under particular circumstances, be at least susceptible of involving an appearance of impropriety. See Opinion 76-41 [since withdrawn]. See also ABA Informal Opinion 995.
DR 5-101(A) provides that "A lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests." Although that DR contains an exception when there has been client consent after full disclosure, we do not believe that client consent would dispose of Canon 9 problems under the facts of this inquiry. See also EC 5-2, which provides that "a lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered. . . ."
Category (a) of the inquiry, as stated above, refers to uncontested dissolution actions. However, such actions may involve contested issues and at least consideration of whether there should be issues other than the actual dissolution itself. The conduct proposed in category (b), involving contested actions and the inquiring attorney serving as an expert witness for the other attorney, would, a fortiori, be inconsistent with the foregoing principles. See also EC 5-9.