Can a lawyer who shares office space and a secretary with another lawyer sue that other lawyer's client?

Plain-English summary

Attorney A and Attorney B shared office space; both were incorporated as P.A.s, had separate telephone lines and letterhead, and shared one secretary. The question was whether Attorney A could file suit against Attorney B's client.

The committee started with Rule 1.10(a), which imputes one lawyer's disqualification to others "while lawyers are associated in a firm." If A and B were in the same firm, Rule 1.7 would bar A from suing B's client; but they are not associated in one firm. The committee quoted the Comment to Rule 1.10 that whether lawyers constitute a firm depends on the specific facts, that two practitioners who share office space and occasionally consult or assist each other ordinarily are not a firm, and that how they present themselves to the public and the terms of any formal agreement are relevant. Because A and B do not present themselves as a firm and have separate phone lines and letterhead, they are not a firm. The committee added that mutual access to client information matters too: the shared secretary presumably has access to both lawyers' client information, and the Comment notes a group might be a firm for the rule against representing opposing parties but not for the rule attributing one lawyer's information to another, so whether B's client is a current or former client is relevant: Rule 1.10 may not prohibit a suit against a former client of B but may prohibit one against a current client. Regardless, the better practice is full disclosure to A's own client. The committee said the ultimate question, whether A and B are one firm, is a matter of substantive law, but on these facts they do not appear to be, so the ethical rules do not prohibit A from suing B's client; and because they share a non-lawyer assistant, each must ensure compliance with Rule 5.3.

Currency note

This opinion was issued in 1991, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Are two lawyers who share office space treated as one firm?

A: The committee said ordinarily not. Citing the Comment to Rule 1.10, it said practitioners who share space and occasionally consult are not a firm, especially where they have separate phone lines and letterhead and do not hold themselves out as a firm.

Q: Can one office-sharing lawyer sue the other's client?

A: The committee said yes on these facts, because the lawyers are not a firm, so Rule 1.10 imputation and the Rule 1.7 bar on suing a firm's client do not apply.

Q: Does it matter whether the other lawyer's client is current or former?

A: Yes. The committee said the shared secretary's access to information makes a suit against a current client more questionable, while Rule 1.10 may not bar a suit against a former client.

Q: What precautions did the committee recommend?

A: Full disclosure to the lawyer's own client as the better practice, and ensuring compliance with Rule 5.3 because the lawyers share a non-lawyer assistant.

Background and rules framework

The opinion applied Rule 1.10(a) (imputed disqualification within a firm), Rule 1.7 (conflicts), and Rule 5.3 (responsibilities regarding non-lawyer assistants), each corresponding to the like-numbered Model Rule, relying heavily on the Comment to Rule 1.10 on when shared-space lawyers constitute a firm. The analysis turned on the lawyers not holding themselves out as a firm and on the shared secretary's access to client information.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.10(a) / Model Rule 1.10: imputed disqualification while lawyers are associated in a firm; the Comment addresses when shared-space lawyers are a firm.
• South Carolina RPC 1.7 / Model Rule 1.7: a firm may not sue its own client.
• South Carolina RPC 5.3 / Model Rule 5.3: responsibilities regarding shared non-lawyer assistants.

See also

• SC Bar Ethics Op. 92-21: One Public Defender Office, Three Co-Defendants
• SC Bar Ethics Op. 92-23: When Opposing Counsel Join the Same Firm

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-37/

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 91-37

Attorney A and Attorney B share office space. Both attorneys are incorporated as P.A.s. They have separate telephone lines and letterhead, and share one secretary.

Question:
May Attorney A may file suit against the client of Attorney B?

Summary:
Because Attorney A and B are not members of the same law firm, and do not present themselves to the public as members of the same law firm, the ethical rules do not prevent Attorney A from suing Attorney B's client.

Opinion:
Rule 1.10 (a) provides that:
"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 form doing so...".

If Attorneys A and B were members of the same firm, Attorney A is precluded from filing suit against Attorney B's client by Rule 1.7.However, Attorneys A and B are not associated in one law firm.

The comment to Rule 1.10 states that "(w)hether two or more lawyers constitute a law firm (for purposes of the Rules of Professional Conduct) can depend upon specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm." Whether they present themselves to the public as a firm, and the terms of any formal agreement between them are relevant to the determination of whether they are a firm. Attorneys A and B do not present themselves to the public as a law firm. They have separate telephone lines and letterhead.

Also important to the determination is whether the attorneys have mutual access to information concerning the clients they serve. Attorneys A and B share one secretary who presumably has access to information concerning the clients of both attorneys. The comment also provides that "(a) group of lawyers could be regarded as a firm for the purposes of the rule that the same lawyers 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 the other." Therefore, it is also relevant whether Attorney B's client is a current client or a former client. Rule 1.10 may not prohibit Attorney A's suit against a former client of Attorney B, but may prohibit a suit against a current client of Attorney B.

Regardless of whether Attorney B's client is a current or former client, the better practice would be for Attorney A to fully disclose this matter to his client. The answer to the question presented turns upon whether Attorneys A and B are associated in one firm, which is a question of substantive law. However, Attorneys A and B do not appear to be members of the same firm in this case. Therefore, the ethical rules do not prohibit Attorney A from filing suit against Attorney B's client.

Because attorneys may share nonlawyer assistants, each must insure compliance with Rule 5.3.