If lawyers keep separate practices in the same building, can they split fees, and how must they protect client confidences and share staff?
Ohio BPC Opinion 91-009: Attorneys With Separate Practices in the Same Building: Fees, Confidentiality, and Shared Staff
Short answer: The opinion concluded that lawyers with separate practices in the same building are not in the "same firm," so fee divisions must meet DR 2-107(A), they must keep filing and computer systems separate to protect confidences under DR 4-101, and they may share non-lawyer staff with reasonable care.
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.
Plain-English summary
The Board addressed three questions about attorneys who maintain separate law practices within the same building but wish to share fees, expenses, and services. On fee division, the opinion concluded that such attorneys are not in the "same firm" for purposes of DR 2-107(A), so they must comply with the rule's restrictions on dividing fees, referring to its fuller discussion in Op. 91-5.
On confidentiality, the Board explained that while the Code does not prohibit sharing office space, equipment, personnel, or expenses, DR 4-101 imposes an affirmative duty not to reveal or use a client's confidences or secrets and to exercise reasonable care to prevent employees and others from doing so. Because the Code does not authorize sharing client confidences among attorneys with separate practices, the opinion concluded that to preserve confidences under DR 4-101, attorneys with separate practices in the same building must keep filing systems separate from and inaccessible to other attorneys, and must limit computer access to client files to the client's own attorney and staff absent full disclosure and client consent. Attorneys who wish to co-counsel should comply with DR 4-101(C)(1) and DR 2-107(A).
On shared staff, the opinion concluded that a more flexible rule applies: it is proper for attorneys with separate practices to share non-lawyer personnel provided each exercises reasonable care under DR 4-101(D) to prevent employees from disclosing or using client confidences or secrets. Citing the ABA Model Rule 5.3 framework on non-lawyer assistants and opinions from New Jersey, Oregon, and Wisconsin, the Board suggested the lawyers disclose to clients that non-lawyer personnel are shared.
Currency note
The Board's status list flags this opinion as Withdrawn by Opinion 2022-11 on October 7, 2022, and as Not Current due to subsequent rule amendments to DR 2-107 (effective August 1, 1990) and DR 7-107 (effective January 1, 1996). This opinion issued in 1991 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.
Common questions
Q: Are lawyers who share a building treated as one firm for fee-splitting?
A: Under this opinion, no. The Board concluded attorneys with separate practices in the same building are not in the "same firm," so DR 2-107(A) applies to fees they divide.
Q: Can these lawyers keep client files in a shared system?
A: The opinion concluded that to preserve confidences under DR 4-101, they must keep filing systems separate from and inaccessible to other attorneys, and limit computer access to client files to the client's own attorney and staff absent disclosure and consent.
Q: Can lawyers with separate practices share a paralegal or secretary?
A: The opinion concluded yes, provided each attorney exercises reasonable care under DR 4-101(D) to prevent the shared staff from disclosing or using client confidences, and it suggested disclosing the shared-staff arrangement to clients.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility DR 2-107 (division of fees among lawyers not in the same firm), DR 4-101 (preservation of client confidences and secrets, including the DR 4-101(D) duty over employees), and DR 7-107(J) (preventing employee extrajudicial statements). It draws on ABA Model Rule 5.3 (non-lawyer assistants).
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 5.3, responsibilities regarding non-lawyer assistants
Rules of Professional Responsibility (Ohio, former):
- DR 2-107, division of fees among lawyers not in the same firm
- DR 4-101, preservation of client confidences and secrets
- DR 7-107(J), preventing employee extrajudicial statements
Other opinions cited:
- Ohio Board, Op. 91-5 (1991): lawyers in association are not in the "same firm"
- New Jersey SupCt, Op. 515 (1983); Oregon State Bar, Op. 486 (1983): sharing facilities and file rooms
- State Bar of Wisconsin, Op. E-86-13 (1986): sharing a non-lawyer employee
See also
- Ohio BPC Op. 1991-005: Lawyers in Association Are Not in the "Same Firm" for Fee Division
- Ohio BPC Op. 1989-036: Office Sharing, Common Letterhead, and Disclaimers
- Ohio BPC Op. 1988-026: Fee Division Where Responsibility Is Assumed
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-91-009.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 91-9
Issued April 12, 1991
Withdrawn by Adv. Op. 2022-11
[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.]
[Not current-subsequent rule amendments to DR 2-107, eff. Aug. 1, 1990; DR 7-107, eff. Jan. 1, 1996.]
SYLLABUS: Attorneys who maintain separate law practices within the same building are not lawyers in the "same firm" for purposes of DR 2-107 (A); therefore, these attorneys must comply with restrictions on division of fees contained within DR 2-107.
In order to preserve client confidences and secrets as required by DR 4-101, attorneys with separate law practices in the same building must maintain filing systems separate from and inaccessible to other attorneys. Computer access to client files must be limited to the client's attorney and staff in the absence of full disclosure to and consent of the client.
It is proper for attorneys who maintain separate practices to share non-lawyer personnel provided that each attorney exercise reasonable care to prevent the employees from disclosing or using confidences or secrets of a client as required by DR 4-101.
OPINION: We have before us a request for an advisory opinion on the application of various disciplinary rules to attorneys who maintain separate law practices within the same building but wish to share fees, expenses, and services. Three questions are raised:
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Whether there are restrictions on the division of fees among attorneys who have separate law practices in the same building, but who collaborate on legal matters;
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Whether, in order to preserve client confidences and secrets, attorneys with separate law practices in the same building must maintain separate filing and computer systems inaccessible to the other attorneys and their staffs;
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Whether it would be proper for attorneys who maintain separate law practices to share non-lawyer staff?
DR 2-107 of the Code of Professional Responsibility (Code) regulates the division of fees among lawyers and clearly applies restrictions on the division of fees by attorneys "who are not in the same firm." It is the opinion of the Board that attorneys maintaining separate law practices within the same building are not lawyers in the "same firm" for purposes of DR 2-107 (A). Therefore, these attorneys must comply with restrictions on division of fees contained within DR 2-107. For a more complete discussion on the division of fees, see Ohio SupCt, Op. 91-5 (1991).
The Code does not specifically prohibit the sharing of office space, equipment, personnel, or expenses among lawyers. However, under DR 4-101 which governs the preservation of client confidences and secrets, the attorney has an affirmative duty not to reveal or use a confidence or secret of his client, except when permitted by the rule. DR 4-101 (A) (B) (C). The lawyer also has the affirmative duty to exercise reasonable care to prevent employees, associates, and others from disclosing or using confidences of a client. EC 4-2, DR 4-101 (D).
The purpose of the DR 4-101 restrictions is to preserve the candor between client and attorney required for proper functioning of the legal system and to maintain the fiduciary relationship between client and lawyer. EC 4-1. Also, the ethical obligation to preserve confidences and secrets of a client facilitates proper representation of clients and encourages the public to seek early legal assistance. EC 4-1.
A lawyer may disclose the affairs of his clients to partners or associates of his firm, unless the client otherwise directs. EC 4-2. However, the Code does not authorize the sharing of client confidences and secrets among attorneys with separate practices. DR 4-101. Thus, in the absence of client consent after full disclosure, a lawyer should not associate with another lawyer nor seek counsel from another lawyer if there is a reasonable possibility that the identity of the client or his confidences or secrets would be revealed. EC 4-2. Since DR 4-101 C (1) clearly requires consent and full disclosure to clients prior to revealing confidences or secrets, attorneys with separate practices who wish to co-counsel on client matters should comply with DR 4-101 (C) (1). These attorneys should also comply with DR 2-107 (A).
The Advisory Committee on Professional Ethics of the Supreme Court of New Jersey has opined that a lawyer may share word processing and other computer facilities with a lawyer in an adjacent office, but reasonable care must be taken to prevent employees and associates from disclosing or using client confidences or secrets. New Jersey SupCt, Op. 515 (1983). Similarly, the Legal Ethics Committee of the Oregon State Bar stated that lawyers who share office space can maintain a common file room but must preserve confidences and secrets by guidelines which perhaps could provide for maintaining separate, secured file systems. Oregon State Bar, Op. 486 (1983).
It is the opinion of this Board that in order to preserve client confidences and secrets as required by DR 4-101, attorneys with separate law practices in the same building must maintain filing systems separate from and inaccessible to other attorneys. Computer access to client files must be limited to the client's attorney and staff in the absence of full disclosure to and consent of the client.
A more flexible rule applies to the sharing of non-lawyer staff services. DR 4-101 (D) places a duty of reasonable care to prevent non-lawyer personnel from violating the preservation of client confidences and secrets:
A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101 (C) through an employee.
Code of Professional Responsibility DR 4-101 (D).
The Code acknowledges that the normal operation of a law office exposes confidential professional information to non-lawyer employees and that this obligates a lawyer to select and train his employees carefully in order to preserve the sanctity of client confidences and secrets. EC 4-2. DR 7-107 (J) places a related duty upon a lawyer to prevent employees from making extrajudicial statements on confidential matters.
ABA Model Rule 5.3 (a) regarding non-lawyer assistants, suggests that a partner in a firm must make reasonable efforts "to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer." Under Model Rule 5.3 (b), reasonable efforts must also be made by a lawyer with supervisory authority over a non-lawyer "to ensure that the person's conduct is compatible with the professional obligations of the lawyer." The rule also deems a lawyer responsible for the conduct of the non-lawyer assistant under certain circumstances. Model Rule 5.3 (c). The Comment to Model Rule 5.3 advises that the lawyer should give instruction and supervision to assistants regarding ethical aspects of employment, particularly the obligation not to disclose information relating to representation of the client.
The Committee on Professional Ethics of the State Bar of Wisconsin has expressed the opinion that a district attorney's office and a circuit judge's office may share the services of a non-lawyer employee provided that both offices exercise reasonable care in instructing and supervising the employee regarding confidentiality of documents and communications. Op. E-86-13 (1986).
It is the opinion of this Board that it is proper for attorneys who maintain separate practices to share non-lawyer personnel provided that each attorney exercise reasonable care to prevent his employees from disclosing or using confidences or secrets of a client as required by DR 4-101. The Board suggests that in an effort to avoid potential conflicts, the lawyers disclose to their clients that non-lawyer personnel are shared by lawyers with separate law practices.
This is an informal, non-binding advisory opinion based on the facts presented and limited to questions arising under the Code of Professional Responsibility.