By Joan C. Rogers
A lawyer may use not a short-term, flexible rental arrangement as an
alternate law office when the location is also used by nonlawyers, according to
an Oct. 26 opinion from the Michigan bar's ethics committee (Michigan State Bar
Comm. on Professional and Judicial Ethics, Informal Op. RI-355, 10/26/12).
The committee advised that while lawyers may meet with clients in places
other than a regular permanent office, they may not maintain a physical location
as a law office without having a dedicated office space that is separate from
other business operations. This separation is necessary to avoid the appearance
of an impermissible multidisciplinary practice or the unauthorized practice of
law, it explained.
Even when a part-time office location that is shared with nonlawyers does
provide the necessary separation between a law practice and other business
operations, such arrangements present ethical challenges that require careful
attention to comply with the Michigan Rules of Professional Conduct, the opinion
The inquiring lawyer has a primary law office but wants to establish a
secondary law office address in another county, in an office suite that would be
shared with nonlawyers and not staffed during normal business hours. The lawyer
is exploring this arrangement as a way of testing whether to open a fully
staffed law office in the area.
The office suite contains a main reception area and office space, some of
which is leased and some of which is available for short-term rental. The
conference rooms are not dedicated to any single user but can be rented on an
Rather than leasing specific space within the office suite, the lawyer would
make sporadic use of the office space and conference rooms, renting any
available office space on a short-term basis as needed to meet with clients and
potential clients. A telephone number for the office suite with a local area
code would ring at the lawyer's principal law office. Mail sent to the office
suite would be sorted without being opened and placed in a mailbox designated
for the lawyer's principal office, or it would be opened, scanned, and emailed
to the lawyer upon request.
Any materials that advertise the location and local telephone number for the
secondary office would indicate “by appointment only.” No sign would be placed
outside the building to indicate the lawyer's office, nor would the alternate
office address be listed on law firm letterhead.
In evaluating this proposal, the committee looked back to prior opinions such
as Michigan Informal Ethics Op. RI-313 (1999), which concluded that a law firm
may share space with a nonlawyer business if the office space and common areas
are arranged and used in a manner that ensures that the business operations
remain separate and distinct, client confidences and secrets are adequately
protected, and the public does not misconstrue the nature of the affiliation
between the lawyers and the nonlawyer business.
Applying that framework, the committee concluded that “the proposed
short-term rental arrangement is ethically impermissible” because it does not
provide the lawyer with physical space that is separate and distinct from the
nonlawyers who also rent space sporadically in the office suite.
This feature of the arrangement, the opinion explains, could facilitate a
multidisciplinary practice, contrary to Rule 5.4(b), or the unauthorized
practice of law, contrary to Rule 5.5. Clients and prospective clients meeting
with the lawyer in an office adjacent to a nonlawyer's office, rather than a
neutral conference room separate from the nonlawyer businesses, may believe that
the lawyer's practice offers legal and nonlegal services or that the nonlawyers
are involved in delivering legal services. These concerns are heightened, the
panel said, by the fact that the lawyer's presence is sporadic, so that what
goes on in her absence is largely unobserved.
Lawyers are not precluded, the committee said, from meeting with clients or
would-be clients at locations other than a permanent office maintained during
normal business hours. But in advertising or other communications about a
lawyer's services, “a lawyer cannot identify a physical location as a law office
without having a dedicated office space that has the necessary separation from
other businesses,” the opinion states.
Drawing on its earlier opinions about sharing office space with nonlawyers,
the committee provided its thoughts on other issues presented by the proposed
arrangement even when the requirement of a dedicated office space separate from
nonlawyer businesses is met:
practice and unauthorized practice. The lawyer must ensure that the
alternate law office arrangement does not violate Rule 5.4(b) or Rule 5.5 by
presenting the appearance that nonlawyers are practicing with the lawyer or that
nonlawyers are practicing law.
In keeping with Rule 7.1 (communications about lawyer's services), the lawyer's
marketing may not be false, fraudulent, misleading, or deceptive. A lawyer who
maintains an alternate location must ensure that all communications accurately
depict legal services available at the secondary location. The label “by
appointment only” is adequate as initial information but may need to be
supplemented by additional discussion with clients for whom in-person meetings
with the lawyer in that locality are important.
and safeguarding client files. The fact that the proposed alternate office
is open only periodically does not preclude the lawyer from appropriately
protecting clients' information as required by Rule 1.6 (confidentiality) and
client files as required by Rule 1.15 (safeguarding property). Lawyers may use
vendors to handle documents or data containing client information so long as
appropriate measures are taken to minimize the risk of inadvertent or
unauthorized disclosure and the risk of loss.
of nonlawyers. Under Rule 5.3 (supervision of nonlawyers), the lawyer must
make reasonable efforts, perhaps including routine audits and reminders, to
ensure that the administrative staff at the alternate location knows about and
abides by the lawyer's duty of confidentiality. Performance of clerical duties
involving client information is improper where a lawyer shares office space with
nonlawyers or lawyers in a different firm.
with clients. The lawyer must maintain adequate communication with the
client as required by Rule 1.4. A full-time dedicated office is not necessary if
other arrangements are made that afford secure lawyer-client communications and
allow the lawyer to keep the client reasonably informed.
and diligent representation. The lawyer must be available and willing to
schedule face-to-face meetings as needed to comply with Rule 1.1 (competent
representation) and 1.3 (diligence).
Full text at http://www.michbar.org/opinions/ethics/numbered_opinions/ri-355.cfm.
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