Can a Kentucky lawyer share office space with a business or professional that is not engaged in the practice of law?

Plain-English summary

A lawyer asked whether a lawyer may share office space with persons or organizations engaged in activities other than the practice of law. In 1978, KBA E-192 had adopted an outright prohibition on such office-sharing, out of concern that nonlawyer co-tenants would become "feeders" for the law practice and create indirect advertising or improper fee-sharing. The Committee revisited that categorical approach in light of the ABA's case-by-case treatment (Formal Opinion 328 and Informal Opinion 1482) and later state authority, including Michigan's view that office-sharing is not itself the ethical issue but the factual setting in which the ethical protections must be examined.

The Committee agreed that the modern Rules treat office-sharing as a context in which ethical issues arise rather than as a separate problem warranting categorical prohibition, and that a flat ban had become overbroad now that advertising and solicitation are regulated by fact-sensitive limits rather than outright prohibition. It therefore modified the part of KBA E-192 that categorically barred all office-sharing between lawyers and nonlawyers. In its place, the Committee held that any office-sharing arrangement, in its physical layout and functional operation, must safeguard confidential client information under Rule 1.6 by preventing unauthorized access, preserve the lawyer's professional independence under Rules 5.4 and 5.5 by keeping the law practice separate and distinct, and conform to Rules 7.10, 7.20, and 7.30 by avoiding improper communications about legal services.

The opinion described the safeguards ordinarily needed: secure space where lawyer-client conversations cannot be overheard; separate and secure computer systems, files, telephone, and fax; trained and supervised staff who do not handle confidential client information (and no shared staff at all where the lawyer's clients have interests adverse to the co-tenants); clearly differentiated signage, entries, and listings that establish the distinct identity of the law practice; no common conference room used in a way suggesting affiliation; firm names that do not imply affiliation; no fee division with the other activities; attention to conflicts under Rule 1.7(b); and no scheme by which the law practice and the other activities give or receive anything of value for client referrals.

Currency note

This opinion was issued in 2001 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), under which several rules cited here, including the advertising and solicitation rules, were amended or renumbered. The Kentucky Bar Association notes that lawyers should consult the current version of the rules before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a Kentucky lawyer share office space with a nonlawyer business?

A: Per the opinion, yes. The Committee modified the older flat prohibition in KBA E-192 and allowed office-sharing with nonlawyers, provided the arrangement meets the confidentiality, independence, and communication standards it set out.

Q: What must the office-sharing arrangement protect?

A: The opinion concluded the layout and operation must safeguard client confidences under Rule 1.6, preserve the lawyer's professional independence under Rules 5.4 and 5.5, and conform to the advertising and solicitation rules (7.10, 7.20, 7.30).

Q: Can the lawyer and the co-tenant share a receptionist or staff?

A: The opinion concluded common receptionists ordinarily should be avoided; if one is used, the lawyer's phone line must be separate, calls answered without reference to the other activity, and no shared staff may handle confidential client information. Where the lawyer's clients are adverse to the co-tenants, staff may not be shared at all.

Q: Can the arrangement be used to generate client referrals?

A: Per the opinion, no. Office-sharing may not be undertaken to facilitate referrals or cross-referrals, and nothing of value may be given or received for such referrals.

Background and rules framework

The opinion interprets KRPC 1.6 (confidentiality; the Model Rule 1.6 counterpart), Rules 5.4 and 5.5 (professional independence and unauthorized practice; Model Rules 5.4 and 5.5), Rule 1.7(b) (conflicts of interest; Model Rule 1.7), and the Kentucky advertising and solicitation rules 7.10, 7.20, and 7.30 (the Model Rule 7.x counterparts). It modifies KBA E-192's categorical ban and draws on ABA Formal Opinion 328, ABA Informal Opinion 1482, and out-of-state opinions.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / KRPC 1.6 (confidentiality)
• MR 5.4 / KRPC 5.4 (professional independence; fee sharing)
• MR 5.5 / KRPC 5.5 (unauthorized practice)
• MR 1.7 / KRPC 1.7(b) (conflicts of interest)
• KRPC 7.10, 7.20, 7.30 (communications about legal services; referrals; solicitation)

Other opinions cited:

• KBA E-192 (1978): categorical ban on office-sharing, modified here
• KBA E-322 (1987); E-406 (1998): lawyer office-sharing and shared staff
• ABA Formal Op. 328 (1972); ABA Informal Op. 1482 (1982): case-by-case approach
• Mich. Op. RI-118 (1992); Mich. Op. RI-206 (1994): office-sharing safeguards

See also

• KBA Ethics Op. E-408: Lawyer as Real Estate Sales Agent
• KBA Ethics Op. E-420: Borrowing Litigation Costs and a Security Interest in a Contingent Fee

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-417.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-417
Issued: July 2001

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, this opinion refers to Rule 1.7 and the Comments, which was amended. Lawyers
should consult the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer share office space with persons or organizations engaged in
activities other than the practice of law?

Answer:

A lawyer may not share office space with persons or organizations engaged in
such other activities unless the office-sharing arrangement, in its physical layout
and its functional operation, will:
a)

safeguard confidential information of the lawyer’s clients, by
preventing unauthorized access;

b)

preserve the lawyer’s professional independence, by keeping the
law practice separate and distinct from other activities and by
avoiding impermissible conflicts of interest; and

c)

conform to rules governing information about legal services, by
avoiding improper advertising and referral or solicitation of
prospective clients.

Ordinarily, office sharing arrangements will satisfy these requirements if they:
(i)

provide exclusive and secure facilities for the lawyer to meet
clients, communicate with them, and store information relating to
their representation;

(ii)

establish the distinct identity of the law practice by furnishing
clearly differentiated signage and entry to the law office and by
avoiding uses of common employees or facilities in ways that
suggest the practice and other activities are somehow affiliated;
and

(iii)

allow no misleading communications on the premises regarding
legal services, no communications suggesting that the law practice

is affiliated with another activity, no improper advertising or
contacts by the lawyer with prospective clients, and no scheme by
which the law practice and other activities give or receive anything
of value in return for client referrals.
References:

Kentucky Rules of Professional Conduct (S.C.R. 3.130) 1.6,
1.7(b), 5.4, 5.5, 7.10,
7.20, 7.30; KBA Opinions E-406, E-322, E-192; ABA Formal Opinion No. 328
and Informal Opinion No. 1482
OPINION

This Committee has long advised lawyers to view office-sharing arrangements with
caution. In 1978 the Committee issued KBA Opinion E-192, adopting an outright prohibition
against office-sharing with professionals or businesspersons engaged in activities other than the
practice of law. The Committee acknowledged that its prohibitory approach contrasted with
several informal opinions of the American Bar Association, which had allowed office-sharing
arrangements on a case-by-case approach if they did not become “feeders” for the law practice,
create indirect advertising, or entail an improper apportioning of fees or expenses. These
informal ABA opinions flowed from Formal Opinion 328 (1972), in which the ABA Committee
on Ethics and Professional Responsibility had eschewed broad language condemning “indirect
solicitation” or “feeding the law practice.” Instead, the ABA Committee insisted, “any
proscription must be based on provisions of the Code [of Professional Responsibility].”
Nonetheless, in KBA Opinion E-192 our Committee considered office-sharing to be a
phenomenon deserving of separate treatment and categorical condemnation:
[T]he evils of direct or indirect solicitation on [the] part of the laymen are
inevitable. Sooner or later, there will, in fact, be a feeder service for the practice
of law…. With all due regard to the American Bar Association, it is our opinion
that a lawyer may not share office space and expenses with a real estate broker.
Furthermore, a lawyer may not share office space and expenses with a certified
public accountant or any other group or groups of people. [Emphasis supplied.]
In 1982, the ABA issued Informal Opinion No. 1482, revisiting the issue of officesharing in the context of the Code. The ABA Committee explained its adherence to the case-bycase approach:
The Model Code does not prohibit a lawyer from sharing office space with a
private business. Nonetheless, steps must be taken by any lawyer who practices
in such a setting to avoid possible misunderstanding that could be created by
sharing offices. Because certain specific legal obligations and ethical protections
hinge upon the existence of an attorney-client relationship, care must be taken to
leave no doubt as to when that relationship exists and when it does not.

When the ABA later promulgated the Model Rules of Professional Conduct, it
maintained the same approach. As explained in one authoritative commentary:
Nothing in either the ABA Model Rules or the ABA Model Code specifically
proscribes the sharing of office space, personnel, equipment, or expenses. A
lawyer who decides to enter into this type of arrangement, however, must
consider various ethical constraints against misleading the public, revealing client
confidences, or engaging in improper division of fees or solicitation. [ABA/BNA
Lawyers’ Manual on Professional Conduct (2000), at p. 91:601, hereinafter cited
as ABA/BNA Manual.]
Recent opinions of state bar ethics committees outside Kentucky have followed the
ABA’s lead. Id. at pp. 91:610-12, and 614-15. As noted by the Michigan Standing Committee
on Professional and Judicial Ethics, office-sharing is not, of itself, the ethical issue; rather, it is
the factual setting in which compliance with ethical protections must be examined. These
protections include the preservation of client confidences and secrets, the exercise of a lawyer’s
independent professional judgment in representing clients, and the accuracy and propriety of
communications concerning the lawyer’s services. Mich. Prof. Jud. Eth. Op. No. RI-118 (1992).
We agree. The modern Rules treat office-sharing as a context in which ethical issues
arise, rather than as a separate problem to be addressed by categorical prohibition. When we
adopted the categorical approach in KBA Opinion E-192, our concern was primarily with
“feeder” operations that contravened the spirit of prohibitions against lawyer advertising and
client solicitation. Although the lines of demarcation against advertising and solicitation had
already begun to shift by 1978, we created a prophylactic remedy against a source of activities
perceived to be broadly prohibited. Today, as court decisions have forced outright prohibitions
of advertising or solicitation to be replaced by fact-sensitive regulations and limitations, the
categorical approach to office-sharing has become overbroad. Office-sharing arrangements vary
greatly. It would be an oversimplification to say that no arrangement ever could satisfy the
ethical standards relating to confidential information, independent professional judgment, or
communications about a lawyer’s services. Moreover, a categorical preclusion against officesharing may stifle some ethically responsible office-sharing arrangements that could produce
salutary effects, such as enabling lawyers to control costs and to make their services more fully
available to clients of moderate means.
In our view, the time has come to allow office-sharing arrangements while holding them
strictly accountable under these ethical standards. Indeed, our Committee already has moved in
that direction with respect to office-sharing by lawyers with other lawyers. We have stated, for
example, that prosecutors and defense counsel may not share offices because of the obvious risks
to confidentiality of client information and to each lawyer’s professional independence; but we
have allowed office-sharing if part-time government lawyers’ duties are limited to special
functions, and we have allowed prosecutors and defense counsel to rent space in the same
building if the offices are “sufficiently separate to ameliorate the concerns raised by ‘office
sharing’.” KBA Opinion E-322 (1987).

Accordingly, today we modify that part of KBA Opinion E-192 which categorically
prohibits all office-sharing arrangements between lawyers and persons engaged in occupations or
professions other than the practice of law. We reaffirm, however, the ethical mandate that any
office-sharing arrangement, in its physical layout and functional operation, must safeguard
confidentiality under Rule 1.6 [Kentucky S.C.R. 3.130 (1.6)], by preventing unauthorized access
to client information. The arrangement also must preserve the lawyer’s professional
independence under Rules 5.4 and 5.5, by keeping the law practice separate and distinct from
other activities. Finally, the arrangement must conform to Rules 7.10, 7.20, and 7.30; it must
avoid improper communications, by the lawyer or by the office-sharing nonlawyers, of
information about legal services. It is the lawyer’s responsibility to assure that a contemplated
office-sharing arrangement will satisfy all of these standards and will conform to any other
applicable provisions of the Rules of Professional Conduct.
Experience with office-sharing in jurisdictions outside Kentucky has revealed the kinds
of safeguards ordinarily needed to demonstrate compliance with these ethical requirements.
Confidentiality must be protected by providing space in which lawyer-client conversations
cannot be seen or overheard; by providing separate and secure computer systems and files for
client-related records, including client-related billing and accounting information; and by
providing separate telephone service to the lawyer’s office as well as a means of safeguarding
the confidentiality of any information sent or received by facsimile machine. See generally, e.g.,
D. C. Ethics Opinion No. 303 (2001); N.Y. Cty. Law. Ass’n Comm. Prof. Ethics Opinion 692
(1993). In order further to protect confidentiality and to assure the lawyer’s professional
independence, any shared staff must be trained and supervised in preserving the separateness of
law office work and the confidentiality of client records and communications. See, e.g., Pa. Bar
Ass’n Comm. Legal Ethics Prof. Resp. Informal Opinion No. 95-105 (1995); Mich. Prof. Jud.
Ethics Opinion, supra. Common receptionists ordinarily should be avoided; if one is used,
however, the lawyer’s telephone line must be separate and exclusive; incoming calls must be
answered in a way that identifies the lawyer or law office without reference to the other
activities. Neither a shared receptionist nor any other shared staff may handle confidential client
information. Moreover, if the lawyer’s clients have interests adverse to the other professionals or
businesspersons sharing office space on the premises, staff must not be shared at all. Cf. KBA
Opinion E-406 (1998) (stating that lawyers representing clients with adverse interests may not
share a legal secretary).
The lawyer’s professional independence also must be evidenced by an office arrangement
that “makes it clear to all clients and others that they are dealing with the law firm at times when
in fact this is the case.” ABA Informal Opinion 1482, supra. Door signs, the entry to the law
office, telephone listings, written materials such as stationery, and receptionist contacts must
express the separate and distinct character of the law practice. Mich. Prof. Jud. Eth. Opinion RI206 (1994). A common conference room should not be used by the lawyer as a library or in any
other way suggesting an affiliation of the law practice with another activity on the premises. Id.
The names of law firms and other activities must not suggest the existence of such affiliation,
and the law practice must not divide fees with the other activities. See generally, ABA/BNA
Manual, supra, at p. 91:601. Moreover, the lawyer must take care to assure that relationships
with other activities on the shared premises do not give rise to impermissible conflicts of interest,

such as an economic interest of the lawyer or third person adversely affecting the representation
of a client within the meaning of Rule 1.7 (b).
Finally, the lawyer must take responsibility for assuring that no misleading information
about his or her legal services is disseminated on the premises and that any communication about
the lawyer conforms to restrictions on advertising and on direct contact with prospective clients.
Communications may not suggest that the law practice is affiliated with another activity on the
premises. Office-sharing may not be undertaken for the purpose of facilitating referrals or crossreferrals of clients; neither may anything of value be given or received for such referrals. See,
e.g., Arizona Ethics Opinion 84-10 (1984); Ohio Informal Ethics Opinion No. 90-2 (1990); and
Wisconsin Ethics Opinion E-83-8 (1983) (each cited in ABA/BNA Manual, supra).

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.