When two lawyers share office space and a secretary, can they take opposite sides of a case, and can one refer a client to the other in a matter where the referring lawyer will testify?

Plain-English summary

Attorney A and Attorney B kept separate practices but shared office space, telephone, equipment, and a secretary. Two questions arose. First, Attorney B represented a defendant against a claim that a client of A wished to bring; could they take opposite sides? Second, A wished to refer to B a case in which A might be called as a witness.

On the first question, the Commission answered no. Rule 3.4(b) bars employment likely to adversely affect a lawyer's independent professional judgment, and the office-sharing arrangement created a mutual financial dependence that could require declining cases against the other. More decisively, Rule 3.6(l)(2) requires each lawyer to exercise reasonable care to prevent shared employees from improperly disclosing client confidences; with a shared secretary, the danger that confidences would be revealed was too great to permit cases against each other. The secretary, an employee of both, would be placed in the impossible position of, for example, owing B a duty to reveal that his answer deadline was running or that he had failed to subpoena a witness, learned from A's communications with his client.

On the second question, the Commission applied a different analysis. Rule 3.4(j) bars accepting employment where the lawyer or a lawyer in his firm is likely to be a witness, but because A and B share space without being associated in the same firm, B is not automatically barred from a case in which he would call A as a witness. However, Rule 3.4(a) requires B, before accepting, to disclose to the prospective client the potential problems the space-sharing relationship presents when A testifies. Quoting ABA Formal Opinion 339, the Commission noted that an interested witness's testimony is subject to impeachment and may be discounted; because A and B's fortunes are to some degree intertwined (if A's unfavorable testimony cost the client the case, B's fee or future referrals could suffer), A would be subject to cross-examination on his affiliation with B and his vicarious pecuniary interest. Rule 3.4(a) requires advising the client of these disadvantages so the client can instead hire an attorney wholly independent of A, whose credibility would not be compromised.

Currency note

This opinion was issued in 1983, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 lawyers who share an office and a secretary represent opposing parties in the same matter?

A: The opinion concluded no. Their mutual financial dependence (Rule 3.4(b)) and the shared secretary's exposure to both clients' confidences (Rule 3.6(l)(2)) make the risk too great.

Q: Why is the shared secretary the decisive problem?

A: The opinion explained the secretary, an employee of both lawyers, would owe conflicting duties and could not avoid the risk of revealing one client's confidences (such as a missed deadline or witness) to the opposing lawyer.

Q: Does the lawyer-witness rule bar a referral between office-sharing lawyers?

A: The opinion concluded not automatically. Because office sharers are not a 'firm,' Rule 3.4(j) does not bar B from a case where he will call A as a witness.

Q: What must the receiving lawyer do before taking such a referral?

A: The opinion concluded that, under Rule 3.4(a), B must disclose the space-sharing relationship and A's resulting interest (which exposes A to impeachment) so the client can choose a wholly independent witness.

Background and rules framework

The opinion interprets former Maine Bar Rules 3.4(b) (employment impairing independent judgment), 3.6(l)(2) (preventing nonlawyer employees from disclosing client confidences), 3.4(j) (lawyer-witness disqualification, limited to the lawyer's firm), and 3.4(a) (disclosure of relationships and interests). These correspond to ABA Model Rule 1.7 (conflicts of interest), Model Rule 5.3 (responsibilities regarding nonlawyer assistants), and Model Rule 3.7 (lawyer as witness), with imputation principles like Model Rule 1.10. The opinion relies on ABA Formal Opinion 339 (1975) on the impeachment of interested lawyer-witnesses.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts); Model Rule 5.3 (nonlawyer assistants); Model Rule 3.7 (lawyer as witness)
• Maine Bar Rules 3.4(b), 3.6(l)(2), 3.4(j), 3.4(a)

Other opinions cited:

• ABA Formal Opinion No. 339 (1975): impeachment of interested lawyer-witnesses
• San Diego County Bar Association Opinion No. 1972-8 (office sharers and conflicts)

See also

• ABA Formal Op. 507: Office Sharing With Lawyers
• Maine Ethics Op. 59: Pro Bono Referral Conflicts
• Maine Ethics Op. 56: Lawyer's Own Affidavit

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89673

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: August 23, 1983

Question

Attorney A and Attorney B maintain separate law practices although they share office space, telephone and other equipment, and a secretary. In one matter, Attorney B represents a defendant regarding a claim that a client of A wishes to commence. In another, Attorney A represents a client who wishes to bring an action in which A may be called as a witness. A inquires whether he may refer the case to Attorney B.

Opinion

With respect to question #1, at least two issues are presented. A lawyer is enjoined by Bar Rule 3.4(b) not to accept employment if "the exercise of his independent professional judgment on behalf of a client . . . is likely to be adversely affected." For reasons more fully discussed below, the Commission believes that the office-sharing arrangement creates a certain mutual financial dependence which might compel them to decline employment in cases against the other under certain circumstances.

In addition, both A and B are required by Rule 3.6(l)(2) to exercise reasonable care to prevent (their) . . . employees . . . from improperly disclosing or using confidences or secrets of a client. Where, as here, A and B share the services of a secretary, the Commission believes that the danger that confidences will be revealed are too great to permit them to accept cases against each other. See San Diego City Bar Ass'n op. no. 1972-8 and cases cited in Maru, Digest of Bar Assn Ethics Opinions, (1970) under office sharers, conflict of interest. The secretary, being an employee of both, would be placed in the impossible position of owing a duty, for example, to reveal to B the fact that his time was running out to file an answer or that he had neglected to subpoena a critical witness which she had learned from A's communications with his client. Question #1 must therefore be answered in the negative.

With respect to question #2, somewhat different considerations are involved. Rule 3.4(j) provides that:

A lawyer shall not accept employment in contemplated or pending litigation if he knows . . . that he or a lawyer in his firm is likely or ought to be called as a witness.

Although A and B share space and other overhead expenses, they are not associated in the same firm. Since the rule is specifically so limited, B is not automatically prohibited from accepting a case in which it is likely that he will have to call A as a witness.

On the other hand, the Commission believes that, before accepting the employment, B is required by Rule 3.4(a) to disclose to the prospective client the potential problems which his space-sharing relationship with A may present when the latter is called as a witness. It has been stated that:

The principal ethical objections to a lawyer's testifying for his client as to contested issues are that the client's case will, to that extent, be presented through testimony of an obviously interested witness who is subject to impeachment on that account. . . .

. . . The fact that a witness may be interested, even financially, in the outcome of the case, does not necessarily mean that he will testify falsely or will color or slant his testimony to favor the party with whom his interest rests. But given a choice between two or more witnesses competent to testify as to contested issues, and other factors being equal, a client's cause is best served by having the testimony from the witness not subject to impeachment for interest in the outcome of the trial.

Because a trial advocate clearly possesses such an interest, his testimony or that of a lawyer in his firm is properly subject to inquiry based on such interest, perhaps including elements of his fee arrangement in some instances. Thus, the weight and credibility of testimony needed by the client may be discounted and in some cases the effect will be detrimental to the client's cause. A.B.A. formal op. no. 339 (1975)

Many of the same considerations apply in the case presented. Although A and B retain a certain amount of freedom of action within the framework of their space-sharing arrangement, their fortunes are nonetheless to some degree mutually intertwined. If B fails to pay his share of the Xerox or office rental or the secretary's salary, A will risk losing these services. Thus, if as a result of A's unfavorable testimony, his former client should lose the case, B's fee may be reduced or the prospects of obtaining future referrals as a litigator diminished. In his capacity as a witness, A would be subject to cross examination regarding his affiliation with B and his vicarious pecuniary interest in the outcome of the litigation. Rule 3.4(a) requires that the client be advised of these disadvantages before the representation is undertaken in order to afford him an opportunity to hire another attorney who is totally independent of A so that the latter's credibility will not be compromised.