December 11, 1981
It is improper for a public official employed as a part-time assistant prosecutor and a private practitioner who has occasion to be an adversary of the county prosecutor's office to have an office sharing arrangement in the county in which the two lawyers regularly practice.
References: DR 4-101(D), DR 9-101(C), CI-607.
An opinion has been requested on the propriety of an office-sharing arrangement where one of the lawyers does criminal work, and the other lawyer serves as an assistant prosecuting attorney. The following hypothetical situation is set forth:
Lawyer A shares an office in X county with lawyer B. Each lawyer maintain separate books of account, separate filing systems, separate billing systems and separate letterheads for each law practice. A and B are not a partnership or professional corporation and each has a separate and distinct law practice. Neither currently has professional liability insurance; however, if the same is purchased, each would purchase a separate policy of insurance. A and B share a common library which is owned by lawyer B. A and B also share the expenses for maintaining a secretary. Lawyer A pays lawyer B a set rate of money each month to cover office expenses including the up-keep of the library, payment of secretarial salaries, and heat and lighting expenses.
Lawyers A and B do not hold themselves out in X County to be a partnership or a professional corporation. Lawyer A would be appointed assistant prosecuting attorney for X County. Lawyer A would not maintain any prosecution files at the private offices of A and B. Lawyer A would conduct all of the business of the assistant prosecutor from an office located in the courthouse of County X. No work on these files would be done at the private office of A. A, however, would maintain his/her office in the same building as B and continue only private non-criminal law.
Lawyer B has a general practice and does some retained and appointed criminal representation work in X County. By agreement with prosecutor Z, lawyer A would not appear in any criminal case in which lawyer B was counsel of record for a criminal defendant. Prosecutor Z would handle all cases in which lawyer B was the defense lawyer. Under these facts and circumstances, is it possible for lawyer A to accept the job as assistant prosecuting attorney for county X?
Although the assistant prosecutor, A, by agreement with prosecutor Z, would not appear in any criminal case in which lawyer B was counsel of record for criminal defendant, it would be unethical for lawyer A to accept the position of assistant prosecuting attorney for County X under these facts and circumstances.
The answer to this inquiry requires examination of two separate provisions of the Michigan Code of Professional Responsibility. Canon 4 requires a lawyer to "preserve the confidences and secrets of a client." Canon 9 concerns the problem of the appearance of professional impropriety.
Canon 4, and Disciplinary Rules, specifically protect the attorney-client privilege. Revelation of client confidences and secrets is ethically allowable only under the conditions enumerated in DR 4-101(C). See DR 4-101(D) that appears most relevant to this inquiry. It states:
"(D) A lawyer shall exercise reasonable care to prevent his or her employees, associates, and other whose services are utilized by him of her from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee."
When two lawyers, on an assistant prosecutor and the other a criminal defense lawyer, share the same office space there is frequently a common secretary, and frequently ready access to office files, telephone conversations, telephone messages, mail, dictation, general conversation, publicity, etc. Notwithstanding the plan to conduct all assistant prosecutor business from an office in the county courthouse, every good intention and the exercise of reasonable care to prevent the disclosure of client confidences and secrets may not prevent such contingencies.
Further, even though no express partnership arrangement is involved, members of the general public may feel they want a defense attorney who works in the same office with the assistant prosecutor, perhaps because the client feels the defense attorney may be in a position to influence the prosecutor's action through close personal contact with an assistant prosecutor. If the client is then convicted of a criminal charge, the client may feel that the prosecutor's office gained access to confidential information in the defense attorney's files.
The serious consequential problems are obvious. The proposed office-sharing arrangement would adversely affect the preservation of confidences and secrets under DR 4-101(D), and is therefore ethically impermissible under Canon 4.
Consideration of the problem raised in this inquiry would not be complete without a discussion of Canon 9 which States:
And particularly DR 9-101)C which states:
"A lawyer shall not state or imply that he or she is able to influence improperly or upon the irrelevant grounds any tribunal, legislative body, or public official. Emphasis added.
CI-607 addressed the propriety of a court appointed defense attorney trying a case against an assistant prosecutor who happens to be a roommate and god friend of ten years. Although in the inquirer's case, assistant prosecuting attorney A intends to abstain from any case in which lawyer B is defense counsel of record, CI-607 is relevant to the inquirer's proposed arrangement as the same appearance of impropriety is present. In CI-607 this Committee opined:
"The public often cannot appreciate the 'fierce competitive nature' of even the oldest attorney/friends. The appearance that is spoken of in Canon 9 is that which is created on the public and not on the other members of the profession. Accordingly, we must view what effect the present situation has on the public at large.
"Obviously, close personal friendships between attorneys do not always create the appearance of impropriety and constant social contact do not form the basis for ethical [reproach]. However, when dimiciliary or business arrangements necessarily throw opposing counsel in constant personal contact with [others], the public, and more importantly a losing party, become[s] legitimately suspicious." Emphasis added.
As assistant prosecuting attorney, the primary responsibility is to the public at large. It cannot appear to the public that there is even a scintilla of impropriety regarding the office sharing arrangement. As much as two office-sharers might try, and with the most honorable and forthright of intentions, this appearance of impropriety cannot be eliminated. The integrity of our profession, which has come under attack in recent years, requires that every effort be made to bolster the image of the profession. The office-sharing arrangement proposed could only leave a negative impact on the lay-public.
The Canons are statements of norms expressing in general terms the standards of professional conduct expected of lawyers in their relationship with the legal system. While they do not apply to non-lawyers, the Canons do define the type of ethical standards the public has the right to expect of lawyers and non-lawyers employees. The proposed office-sharing arrangement would not meet the standards of professional conduct as required by Canons 4 and 9, and cannot be condoned. The proposed arrangement is unethical.