May a South Carolina lawyer represent a client against an opposing party whose lawyer shares office space, a receptionist, and equipment with the lawyer?

Plain-English summary

Lawyers A and C are two of 14 lawyers who share an office suite: a common receptionist, errand runner, fax and copy machines, conference rooms, and lobby. Faxes are placed in open mail slots visible to all the attorneys and their staff, the receptionist takes everyone's calls and messages, and the lawyers' clients in one office are visible to the others. Lawyer C can see the lobby and anyone entering the suite from his office, sits next to the conference room within hearing distance of the receptionist, and the suite's walls are thin enough that conversations near individual offices can be overheard. Lawyer A's office is removed from Lawyer C's. The lawyers do keep their own letterhead, secretaries, paralegals, supplies, and phone lines. Clients A and B have a contested custody matter; Lawyer A represents Client A, and Client B, having fired his prior attorney, wants to hire Lawyer C. The question is whether Lawyer C may represent Client B against Client A where Lawyer A, opposing counsel, shares the office.

The committee concluded the contemplated representation is not a per se violation of the rules, but these facts are fraught with the danger of confidentiality breaches under Rule 1.6 and the potential for imputation of a conflict under Rule 1.10(a), citing In re Craig, 317 S.C. 295, 454 S.E.2d 314 (1995). It cautioned that care should be used before entering this kind of representation. Rule 1.10(a) imputes one lawyer's Rule 1.7, 1.8(c), or 1.9 conflict to others "associated in a firm," and Rule 1.0(d) defines a firm; Comment 2 to Rule 1.0 normally excludes office-sharing arrangements but states that whether lawyers constitute a firm is a question of fact, and a group could be a firm for the purpose of not representing opposing parties while not being a firm for purposes of imputing one lawyer's information to another.

The committee observed that the South Carolina Supreme Court may not subscribe to the literal exclusion of office-sharing from the firm definition. In re Craig disciplined a lawyer who refused to withdraw from representing a wife where the husband had earlier been represented by another lawyer in the same office-sharing arrangement, without specifying which feature of the arrangement made it a violation. The committee's earlier Op. 91-37 had treated the firm question as a fact-specific substantive issue, found office sharing not per se a violation, and cautioned that Rule 1.10 imputation could still apply depending on the facts and on whether a client was a former client of one of the lawyers, while stressing that a shared office assistant requires strict compliance with Rule 5.3 supervision duties. Here the litigation is ongoing and Clients A and B are both current clients; Lawyers A and C do not share a secretary but do share a receptionist, conference rooms, lobby, and access to each other's copy and fax machines (and fax information). A lawyer's confidentiality duty cannot depend on opposing counsel's ethics, so the lawyer must take every reasonable practice (citing Rule 1.6 Comments [17] and [18]) to keep all communications confidential, including in routine office activities. The committee added a practical observation that placing two opposing domestic clients in such close, repeated proximity may not be a sound way to resolve custody issues, and Lawyer C should seriously consider the consequences before signing a retainer with Client B.

In practice

The opinion holds that, under the South Carolina rules as they stood at the time, office sharing with opposing counsel is not a per se violation, but on the facts presented the arrangement carries a high risk of confidentiality breaches under Rule 1.6 and of imputed conflict under Rule 1.10(a). The committee treated whether two office-sharing lawyers are a "firm" as a question of fact under Rule 1.0(d) and its Comment 2, noted that In re Craig signals the South Carolina Supreme Court may not apply the literal office-sharing exclusion, and stressed that a shared receptionist or assistant requires strict Rule 5.3 supervision. It concluded Lawyer C should seriously consider the consequences before undertaking the representation.

Common questions

Q: Is it automatically prohibited to represent a client against a lawyer who shares your office?

A: No. The committee concluded the representation is not a per se violation of the rules, while warning the facts here are fraught with confidentiality and imputation risks.

Q: Are office-sharing lawyers a "firm" for conflict purposes?

A: It is a question of fact. The committee cited Rule 1.0(d) and Comment 2, which normally exclude office sharing but allow lawyers to be treated as a firm for some purposes (such as not representing opposing parties) and not others; In re Craig suggests the South Carolina Supreme Court may not apply the literal exclusion.

Q: What governs the shared receptionist and staff?

A: The committee, following its earlier Op. 91-37, said use of a common office assistant requires strict adherence to the nonlawyer-supervision duties in Rule 5.3.

Q: Whose job is it to protect confidentiality in a shared suite?

A: The lawyer's own. The committee said a lawyer's confidentiality duty cannot depend on opposing counsel's ethics, and the lawyer must take every reasonable practice (Rule 1.6 Comments [17] and [18]) to keep communications confidential.

Background and rules framework

The opinion interprets South Carolina Rule 1.10(a) (imputation of conflicts within a firm), Rule 1.0(d) (definition of "firm") and its Comment 2, Rule 1.6 (confidentiality, including Comments [17] and [18] on safeguarding information), and Rule 5.3 (supervision of nonlawyer assistants), all corresponding to the like-numbered Model Rules. The analysis turns on whether office-sharing lawyers are a firm, a fact question, and on the practical confidentiality exposure the shared space creates.

Citations and references

Rules of Professional Conduct:

• MR 1.10 / SC Rule 1.10(a) (imputation of conflicts among lawyers associated in a firm)
• MR 1.0 / SC Rule 1.0(d) and Comment 2 (definition of "firm"; office sharing as a question of fact)
• MR 1.6 / SC Rule 1.6, Comments [17] and [18] (confidentiality; safeguarding information against inadvertent disclosure)
• MR 5.3 / SC Rule 5.3 (supervision of nonlawyer assistants)

Cases:

• In re Craig, 317 S.C. 295, 454 S.E.2d 314 (S.C. 1995), discipline arising from an office-sharing arrangement where the same matter had been handled by another lawyer in the suite

Other opinions cited:

• S.C. Bar Ethics Adv. Op. 91-37: whether office-sharing lawyers are a "firm" is a fact-specific substantive issue; imputation under Rule 1.10 may still apply

See also

• SC Bar Ethics Op. 04-10: Imputed Conflict, No Screen
• SC Bar Ethics Op. 04-11: Sharing Office With Own Business
• SC Bar Ethics Op. 03-12: Confidences From a Consult

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-08-11/
• Original PDF: https://www.scbar.org/media/f10lqpj5/08-11.pdf

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 08-11

SC Rules of Professional Conduct: 1.10(a), 1.0(d), 1.6, 5.3

Facts

Lawyers A and C share office space. They are two of 14 lawyers who share a common receptionist, errand runner, fax and copy machines, conference rooms and lobby. Faxes are distributed by the receptionist to the open mail slots of the individual attorneys which are accessible and visible to all attorneys and their staff in the office space. Receptionist receives all incoming calls and takes messages for the individual lawyers. Lawyers have their own letterhead, secretaries, paralegals, supplies and telephone lines. Clients in the office of one attorney are clearly visible to the other attorneys in the office, and vice versa. Lawyer C has a particular advantage in that he can view the lobby and anyone entering the office suite from within his individual office space. Lawyer C also has an office next to the conference room and within hearing distance of the receptionist. The walls of the suite are thin, and conversations can be overheard in the vicinity of the individual attorneys’ offices. Lawyer A’s office is removed from that of Lawyer C.

Clients A and B have a contested custody matter. Lawyer A represents Client A on this matter. Client B fired his former attorney and desires to hire Lawyer C.

Question

May Lawyer C ethically represent Client B in the contested custody matter where Lawyer A shares office space with Lawyer C and Lawyer A is the opposing party’s attorney?

Summary

While the contemplated representation is not a per se violation of the Rules of Professional Conduct, these specific facts are fraught with the danger of breaches of confidentiality as prohibited by Rule 1.6 and the potential for imputation of a conflict of interest under Rule 1.10(a). See also In re Craig, 317 S.C. 295, 454 S.E. 2d 314 (1995). Caution should be used prior to entering this type of representation.

Opinion

Rule 1.10 (a) states:

“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), or 1.9, unless the prohibition is based upon a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

Rule 1.0(d) defines a “firm” for purposes of these Rules as “lawyers in a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.” Comment 2 to Rule 1.0 confirms the normal exclusion of office sharing arrangements from the definition of “firm.” Rule 1.0 Comment 2. It further states that whether two or more lawyers constitute a firm is a question of fact. “A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.” Comment 2, Rule 1.0. See Comments to Rule 1.0 [2] – [4].

As noted in the scholarly work Annotated South Carolina Rules of Professional Conduct (2005) Edition, the South Carolina Supreme Court may not subscribe to the literal exclusion of office sharing arrangements from the definition of “firm.” In re Craig, 317 S.C. 295, 454 S.E. 2d 314 (1995), was a disciplinary action against lawyer who refused to withdraw from representation of wife in a domestic relations matter when husband had previously been represented in the same action by another lawyer in an office sharing arrangement. It should be noted that the Court did not specify what part of the office sharing arrangement made this a violation of the Rules, nor did the Court elaborate upon when, if ever, this type of imputation would not be operative in an office sharing arrangement.

Prior to this disciplinary action, office sharing arrangements were also addressed in S.C. Bar Ethics Adv. Op. No. 91-37. The Committee opined that whether two attorneys sharing resources and office space were considered a “firm” under the S.C. Rules of Professional Conduct was a fact-specific substantive issue. In this opinion, the main question was whether the office sharing arrangement was per se a violation of the S.C.R.P.C. In deciding that this was not clearly a violation of the Rules, the Committee cautioned that the imputation guidelines of Rule 1.10 could still apply dependent upon the facts of the specific situation and whether one of the clients was a former client of one of the attorneys sharing the office. Regardless of the outcome, it was noted that the use of a common office assistant requires strict adherence to the rules of supervision of nonlawyer assistants spelled out in Rule 5.3.

In the current situation, the litigation is clearly ongoing; Clients A and B would both be current clients. While Lawyers A and C do not share a secretary, they do share a receptionist, conference rooms and lobby. Further, they both have access to the same copy machines and fax machines, and could access each other’s fax information. A lawyer’s duty of confidentiality to his clients cannot depend upon the ethical standards of opposing counsel, regardless of the esteem in which the latter is held. See Rule 1.6, Comments [17] and [18](“A lawyer must act competently to safeguard the information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.”). Lawyer should take every reasonable practice to ensure that all communications remain confidential. This includes Lawyer’s office activities that occur in the normal course of business.

While the representation contemplated is fraught with the danger of breaches of confidentiality and the potential for imputation of a conflict of interest, it is not a per se violation of the S.C. Rules of Professional Conduct. On the practical side, having two opposing domestic clients potentially in such close proximity to each other on a repeated basis may not be the most sound method of resolving the custody issues either. Lawyer C should seriously consider the consequences of this representation prior to entering a retainer agreement with Client B.