January 2017

Sharing Offices and Vicarious Disqualification: You’ve Gotta Keep It Separated

By Leah Strickland

Solomon Ward Seidenwurm & Smith, LLP

Brand new attorneys starting their own practice have a lot of decisions to make, and a lot of those decisions involve overhead. Should I hire a secretary? Do I work out of my house, or should I rent office space? If I’m renting, where do I locate my office?

Most attorneys will want to find the best possible location they can afford, for the least possible amount of money. Looking at rental prices in good locations, and then suffering the accompanying sticker shock (especially in coastal California), many attorneys will then turn to what appears to be (and can be!) the perfect solution: sharing office space.

The possible arrangements for sharing office space are as varied as the people sharing the offices, and there are countless ways many businesses can ethically create such office sharing arrangements. For attorneys, however, their decisions must be guided by the Rules of Professional Conduct. There are a number of Rules that could come into play in office-sharing situations. But when splitting office space with another attorney, one Rule to keep in mind is Rule 3-310 and the case law that imposes vicarious disqualification on members of a conflicted attorney’s firm.

Rule 3-310 requires an attorney to provide disclosure or obtain consent where the attorney has a past or present client or relationship that conflicts (or could conflict) with the new client’s interests. Rule 3-310 becomes tricky when the attorney has to consider not just his or her own relationships and how they may impact the client, but the relationships of his or her colleagues as well. “Normally, an attorney’s conflict is imputed to the law firm as a whole on the rationale ‘that attorneys, working together and practicing law in a professional association, share each other’s, and their clients’, confidential information.’” City & Cty. of San Francisco v. Cobra Sols., Inc. (2006) 38 Cal. 4th 839, 847–48.

Sharing office space with another, non-affiliated attorney is perfectly legitimate in California. See, e.g., People v. Pastrano (1997) 52 CA4th 610, 617 (“[A]bsent any evidence to the contrary, we presume that the attorneys … maintained sufficient independence from each other and acted ethically when representing each codefendant.”); see also Cal. State Bar Form. Opn. 1997-150. It only becomes problematic if attorneys go beyond sharing space, and give each other formal or even informal access to their files, their computers—their clients’ privileged information. Not only does a failure to keep proper separation between you and your unaffiliated office-mates subject you to potential disqualification, it could result in you violating one of the most fundamental rules governing attorneys—confidentiality.

Always remember that as an attorney, you are ethically bound to keep “inviolate the confidence, and at every peril to himself or herself preserve the secrets, of his or her client.” Bus & Prof. Code § 6068(e); see also Rule Prof. Conduct Rule 3-100. That means that when sharing offices with other attorneys who are not part of your “firm,” even if you trust those other attorneys, you should consider investing in a good lock on the door to your part of the office. If you maintain filing cabinets in shared spaces, you should look at getting locks on those. And even if you’re not sharing an office with someone else, you should always put a strong password on your computer.

Sharing office space is economical, and it can open up new locations to your budget. Done with your ethical obligations in mind, it can be a smart step in building your law practice.

**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**