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Advisory Committee of the Supreme Court of Missouri Legal Ethics Counsel |
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Modified from:
INFORMAL
ADVISORY OPINIONS Informal
advisory opinions are issued by the Legal Ethics Counsel under Rule 5.30. The Legal Ethics Counsel only issues opinions
to attorneys for their own guidance involving an existing set of facts. Informal advisory opinions cannot be issued
on hypotheticals or regarding the conduct of an attorney other than the one
asking for the opinion. Although an effort has been made to
summarize the important facts of the question, not all details are included in
each summary. Therefore, these summaries
should be used only for general guidance.
Only summaries are available; actual copies of the opinion request and
answer are not available. For a searchable database and
information on requesting opinions, go to: http://www.mobar.org/opinions. OPINION
990120 QUESTION: Attorney
is renting office space from a law firm and there is a landlord tenant
relationship. They share a common
reception area. The firm's receptionist
answers Attorney's telephone calls only when Attorney's number is forwarded to
do so. One of the members of the law
firm is a municipal judge and another is a city prosecutor. May Attorney represent individuals charged
with violations in the areas where the firm members act as the prosecutor and
municipal judge? ANSWER: The
arrangement Attorney has described does not, on its face, prohibit Attorney
from representing individuals charged with ordinance violations in either of
those municipalities. In an office
sharing arrangement, it is important to be certain that people who come into
contact with the offices understand that they are separate offices. This should be addressed in signs and
possibly in the set up of the reception area.
It should also be addressed in the manner in which the telephone is
answered, even when Attorney has forwarded Attorney's calls to the firm's
telephone number. Attorney also has an obligation to maintain confidentiality
as to Attorney's files and other information.
In order to accomplish such confidentiality Attorney's files must be
secure. If Attorney has taken these
steps, the firms will be treated as separate.
Therefore, Attorney will not have a conflict. OPINION
980220 QUESTION: Attorney
is involved in an office sharing agreement with three other attorneys. Each person pays all expenses relating to
their practice and each contracts separately with clients. They do share common overhead expenses. They are also networked together on the same
computer system and everyone on the network can access all of the client files
for all of the attorneys. The attorneys
are the sole occupants of a stand alone building and the sign in front of the
building lists the names of all attorneys and the words "Law
Office". There is one receptionist
answering the telephone for all four attorneys.
Currently, each attorney has their own stationery with their name at the
top. Should Attorney list the names of
the other attorneys on Attorney's stationery?
If so, what is the proper way to list these names? ANSWER: Under
Rules 4‑7.1 and 4‑7.5(f), if Attorney is in an office sharing
arrangement, all stationery, signage, etc., should indicate that Attorney is
completely separate. If Attorney
includes the other attorneys on Attorney's letterhead, it would give a contrary
impression. If Attorney has a separate
practice, it is not appropriate for the other attorneys to have access to
confidential information regarding Attorney's clients. This applies to electronic information in the
computer system, paper files, incoming and outgoing fax materials, etc. Attorney should take immediate steps to make
any necessary changes to comply with the requirements of Rule 4‑1.6
regarding confidentiality. OPINION
980030 QUESTION:
Attorney's firm rents office space to an attorney who is not a member of
the firm and is not "of counsel."
Attorney's firm operates on the same computer network, therefore they
can e‑mail messages to one another and all have access to all client files
stored on the computer. Because the
office‑sharing attorney and the firm have some mutual clients Attorney
would like to add the office‑sharing attorney to the network. Although the office‑sharing attorney
would only be able to look at e‑mail specifically directed to that
attorney, it would be possible to look at the firm's client files. The firm and the office‑sharing
attorney would agree not to look at each other's files. May Attorney's firm allow the office‑sharing
attorney to join the network under this agreement? If not, would the result be different if the
office‑sharing attorney became "of counsel" to the firm? If not, should the paper files of Attorney's
firm be locked so that the office‑sharing attorney cannot gain access to
them? ANSWER: Attorney may not allow the
office‑sharing counsel to join Attorney's computer network without
blocking access to Attorney's client files.
The result would be different if that attorney were "of
counsel" to Attorney's firm. Office‑sharing
counsel should not have physical access to Attorney's paper files at times when
those files are unattended OPINION
970192 QUESTION: Attorney
enters into an office sharing arrangement.
Attorney would have a separate telephone number, but the fax number
would be the same. It would appear on
business cards, letterhead and the bar directory. Would this be a problem? Should Attorney get a separate fax line as
well? ANSWER: It is not
required that Attorney have a separate fax line in an office sharing arrangement. However, Attorney must be able to assure
confidentiality of materials received or sent on a shared fax machine. Similar concerns apply to other shared
machines, such as a copy machine, and shared areas, such as a conference room. ADDITIONAL OPINIONS: Other informal advisory opinions on the
topic of office sharing are available on The Missouri Bar’s website: 970119,
970035, 970007, 960219, 960093, 950212, 950169, and 950026. http://www.mobar.org/opinions WHERE ARE THE HAZARDS? ENTRANCE AND COMMUNICATIONS OUTSIDE THE OFFICE: The signage for the office must make it clear
that there are multiple independent firms within the office space. Similarly, letterhead, advertising,
announcements, etc., must make the independence of the firms clear to an
objective observer having first contact with any of the firms. RECEPTION AREA: The hazards in this area relate to
confidentiality. As separate firms, each
firm must keep client information confidential from the other firms. Discussions between staff and clients and
between staff can violate the duty to maintain confidentiality if they take
place in a way that can be overheard.
Additionally, phone messages should not be left lying around to be
inadvertently viewed by the wrong person. CONFERENCE ROOM & LIBRARY: Documents left lying while
doing research or working on a matter may violate the duty of
confidentiality. Policies should be
developed to limit access during times when papers need to be left out or other
methods should be developed to avoid inadvertent access to confidential
materials by someone outside the firm.
The conference room should be equipped so that confidential discussions
can be held without being overheard. SHARED COMPUTERS: A
shared computer or a shared computer network creates confidentiality
concerns. It is possible to share a
computer or a computer network. However,
it is essential that confidential information be protected by passwords or
other methods. COPY & MAIL ROOM:
Once again, confidentiality is the primary concern. Documents left lying at shared machines or
work spaces may violate the duty of confidentiality. Similarly, documents left in the trash may be
a problem. FILE ROOM: A shared file room creates a greater hazard for
breaches of confidentiality than separate file areas. Documents may be left around waiting to be
filed. In a commonly accessible file
storage area, file cabinets should be secured when unattended. LUNCH ROOM: Confidentiality is the concern. Documents may be left lying. Inappropriate discussions may occur because
people have their guard down. A
telephone call taken in the lunch room may be overheard by those outside the
firm. SHARED PARALEGAL AND SECRETARIES: If the various firms take
cases against one another, staff cannot be shared on such matters. Shared staff must be well educated and
supervised to avoid inadvertent disclosure of confidential information outside
the firm. ATTORNEY OFFICES: Confidentiality must be maintained here, as well. In a situation in which confidential communications will occur within attorney offices, the offices must be such that those communications cannot be overheard by those outside the office, including those in adjacent offices. |
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