Can two lawyers who share office space represent opposing parties in the same contested divorce?
Ohio BPC Opinion 89-005: Office-Sharing Lawyers on Opposing Sides of a Divorce
Short answer: The Board concluded that the Code does not flatly prohibit office-sharing lawyers who practice independently from representing opposing sides in a contested divorce, but each must disclose the arrangement and obtain client consent under DR 5-101(A) and protect client confidentiality under DR 4-101.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
This opinion was issued in 1989 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including the rules on conflicts of interest, confidentiality, and imputation) before relying on any specific rule mentioned here.
Plain-English summary
Two attorneys shared office space and ended up representing opposing parties in a contested divorce. They had separate letterheads, separate secretaries, and otherwise operated autonomously. The question was whether that representation was proper.
The Board started from DR 5-105(D), which would bar two lawyers in the same law firm from representing opposing sides in a contested divorce. It observed that the Code does not explicitly address office-sharing, so the propriety turns on the facts of each case and whether the lawyers are truly independent. Here, because the lawyers did not hold themselves out as a partnership and their practices were independent, the Board concluded the imputed disqualification rules should not apply.
The Board then required compliance with DR 5-101(A): because office-sharing creates at least the possibility of financial or personal interests that could affect a lawyer's judgment, each lawyer had to make full disclosure of the arrangement and obtain client consent to continue (citing EC 5-21). It also stressed confidentiality under DR 4-101 and EC 4-1, directing that materials relating to the divorce be stored separately in locked cabinets and that the two secretaries not share work on the matter. Invoking Canon 9's concern with even the appearance of impropriety, the Board said that although not prohibited, it discouraged office-sharing lawyers from representing opposing sides in a contested divorce.
Common questions
Q: Can two office-sharing lawyers oppose each other in a divorce?
A: Under this opinion, it is not per se prohibited where the lawyers practice independently and do not present themselves as a partnership; the Board treated the office-sharing arrangement as outside the imputed-disqualification rule of DR 5-105(D) on those facts.
Q: What did each lawyer have to do before continuing?
A: The opinion required each lawyer to satisfy DR 5-101(A) by making full disclosure of the office arrangement and obtaining the client's consent to continue the representation.
Q: How were client confidences to be protected?
A: The Board directed that all materials relating to the divorce be stored separately in locked file cabinets and that the lawyers' secretaries not share any work on the matter, citing DR 4-101 and EC 4-1.
Background and rules framework
The opinion interprets the former Ohio Code of Professional Responsibility: DR 5-105(D) (imputed disqualification within a firm), DR 5-101(A) (declining or continuing employment affected by the lawyer's own interests, with client consent after full disclosure), and DR 4-101 (preservation of confidences and secrets), along with EC 5-21, EC 4-1, and Canon 9 (avoiding the appearance of impropriety).
Citations and references
Rules of Professional Responsibility (Ohio):
- Former Code of Professional Responsibility, DR 5-105(D), imputed disqualification
- Former Code of Professional Responsibility, DR 5-101(A), consent after full disclosure
- Former Code of Professional Responsibility, DR 4-101, confidences and secrets; EC 4-1; EC 5-21; Canon 9
Cases:
- Hickman v. Taylor, 329 U.S. 495, 510 (1947), lawyer's need for privacy free of intrusion by opposing counsel
Other opinions cited:
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 1486 (1982)
See also
- Ohio BPC Opinion 1988-021: Conflict Between Public Board Service and Opposing Landowners
- Ohio BPC Opinion 1988-011: Landlord Lawyer, No Duty to Notify Tenant's Prior Counsel
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-005.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 89-005
Issued February 17, 1989
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: When two individual attorneys share office space the facts and circumstances of their relationship will determine if they can ethically represent opposing sides in a case. Under DR 5-101(A), maintaining such representation will require full disclosure and subsequent consent from the clients. Additionally, protection must be taken to preserve the confidentiality of the attorney-client relationship as set forth in DR 4-101.
OPINION: We have before us your request for an advisory opinion on a possible conflict of interest involving two attorneys who share office space and who represent opposing sides in a contested divorce proceeding. You state in your letter that the attorneys' letterheads are separate, they employ separate secretaries, and, in most respects operate autonomously. The major concern appears to be in regard to the propriety of the attorneys' representation.
Two attorneys in the same law firm would be prohibited from representing opposing sides in a contested divorce proceeding. Code of Professional Responsibility, DR 5-105(D). However, the Code does not explicitly address the office sharing situation. Instead, we must look at the facts and circumstances of each case to determine whether the lawyers are to be considered independent of one another. In this particular case, there appears to be no attempt by the attorneys to hold themselves out to the public as a partnership. This, combined with the fact that the two lawyers' practices are independent, leads us to believe that the imputed disqualification rules should not be applied in this particular situation. Id.
Both lawyers must still meet the requirements of DR 5-101(A). See, ABA Committee on Ethics and Professional Responsibility, Informal Op. 1486 (1982). Disciplinary Rule 5-101(A) states:
[e]xcept with the consent of his client after full disclosure, 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.
In this case, it would appear that there is at least the possibility of financial or personal interests arising that could affect either attorney's judgment. The client's consent is required as set forth in DR 5-101(A) and also in EC 5-21 which states:
. . . [a] lawyer subjected to outside pressures should make full disclosure of them to his client; and if he or his client believes that the effectiveness of his representation has been or will be impaired thereby, the lawyer should take proper steps to withdraw from representation of his client.
Both lawyers then must make full disclosure of their office arrangement and receive the consent of their clients to continue the representation.
Another important factor to consider is the confidentiality of the attorney-client relationship. As the U.S. Supreme Court has stated, " . . . it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 510 (1947). Similarly, EC 4-1 states in part:
[t]he observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance. See, also, DR 4-101.
Sharing office space with opposing counsel at least raises the possibility that the client's confidences may not be maintained. To insure confidentiality in this situation, all materials relating to this divorce action should be kept stored separately by the individual lawyers in locked file cabinets. In addition, the secretaries of the two lawyers should not share any work relating to the divorce proceeding at issue in this request.
Due to the difficult nature of this type of arrangement, all possible caution should be used by both lawyers to preserve each client's right to privacy and confidentiality. Also, Canon 9 requires lawyers to avoid even the appearance of impropriety. Thus, although not prohibited by the Code, we discourage two lawyers who share office space from representing opposing sides in a contested divorce proceeding.
In conclusion, it is our opinion, and you are so advised, that the Code of Professional Responsibility does not explicitly forbid two lawyers in an office sharing arrangement from representing opposing parties in a contested divorce but does place a burden on the respective attorneys to operate within the guidelines of DR 5-101(A) and DR 4-101. The clients must be made aware of the personal and financial relationship between the two attorneys so that the clients can make an informed decision regarding their representation. Additionally, strict client confidentiality must be maintained, and the privacy of the individual clients respected.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.