June 16, 1980
Lawyers with individual practices maintaining separate offices, entrances, reception areas, conference rooms telephones, secretarial staffs, and record retention systems, may share a common library and document duplication services physically located between and having dual access from their separate offices while representing opposite sides of the same case(s), provided, precautionary safeguards are used to assure strict confidentiality of the representative clients confidences and secrets.
References: DR 4-101, DR 5-101, DR 5-105.
Currently you and another lawyer are practicing law under a partnership arrangement. You indicate that your practice is located in a county comprising approximately 7,500 inhabitants where both the prosecuting attorney and probate judge are part-time positions. Your opinion request indicates that Mr. X contemplates running for the office of prosecuting attorney and as such, you are contemplating formal dissolution of your law practice partnership and thereafter instituting separate practices so as to avoid any and all inferences of conflict of interest. However, you indicate that because of the necessity to maintain a well functioning law library given the isolated geographic situation of your practices, it is your collective intention to relocate to new offices where there would be a sharing of the law library and paper duplication facilities; while maintaining separate practices; separate offices; separate entrances; separate reception areas; separate conference rooms; separate telephone installations; and separate secretarial staffs and file storage areas. The only physical connection between the newly anticipated office facilities, supra, would be joint access to the law library, without resorting to the outside of the building for access. The law library and copy machine facilities would be owned by your respective wives under a separate corporation and leased back to your respective offices at cost.
Inquire is made as to whether it is proper under the circumstances outlined to practice law as completely independent attorneys with total freedom to take opposite sides of any type of case.
In an earlier decision of this Committee interpreting the then existent Canon 6, it was held unethical for lawyers who shared the expenses of one office; one stenographer; one office staff and shared one entrance door to the office facilities to handle opposite-side litigation ". . . an 'office partnership' between lawyers is not readily distinguishable by the public from an actual co-partnership. Knowing of their intimate relationship as office associates, the public may easily infer that when one represents the defendant, there is some influence operating in their office whereby they may combine to defeat the ends of justice." CI-100.
Canon 6 has now been redefined to include elements of DR 4-101; DR 5-101; DR 5-105(A)(B) and DR 7-101(3) respectively. The common issue addressed throughout each of the aforementioned ethical rules is the negation of potential conflict of interest infractions.
Given the fact that you plan to maintain separate and distinct offices and practices as outlined above and given the practical realization of your area's access to legal materials, your actions would not necessarily violate the tenor nor spirit of the Code of Professional Responsibility.
You must be caution about the provisions of the Code of Professional Responsibility as they may relate to possible conflict of interest problems concerning the division of client files. Numerous opinion exist that warn and preclude lawyers from litigating against a former client while possibly using confidences of a former client against that client. Dee DR 5-105(C); CI-379 and CI-431. The appearance of ethical impropriety should be avoided at all costs.