November 21, 2012
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 makes clear.
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 as-needed basis.
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:
• Multidisciplinary 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.
• Marketing. 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.
• Confidentiality 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.
• Supervision 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.
• Communication 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.
• Competent 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).
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