April 29, 1991
A criminal defense lawyer acting as a landlord may rent office space for use by a tenant county prosecutor, even though these lawyers may appear opposite each other in cases, provided that the lawyers both maintain strict confidentiality of client files, and otherwise adhere to their respective ethical responsibilities.
References: MRPC 1.6(b)(1), 1.6(d), 1.7(b)(1), 1.8(a); CI-467, CI-511, CI-706, CI-1014.
The county government lacks adequate office space in the courthouse for the prosecutor and staff. A lawyer/landlord owns a building across the street from the courthouse and rents office space to the county for use by its prosecutor and staff; the lawyer/landlord also serves as criminal defense counsel and may appear opposite the prosecutor representing defendants.
The prosecutor does not share any offices with this lawyer/landlord, but rather rents separate, private quarters to the county. All files are separately maintained and no common staff serve both lawyers. The building has an integrated telephone system (i.e., with intercom and other features); however, the prosecutor's office maintains separate telephone lines. The only shared areas are the common areas of the building (e.g., restrooms, lobby, building entrances, kitchen and photocopy room). The lawyer/landlord owns the photocopy machine and the county pays an additional, monthly charge for the prosecutor's use of that photocopier. The respective staffs of each office have been clearly and regularly instructed to maintain confidentiality of clients and files and not to gossip about or entertain generic discussions of cases.
Other than rent for office space and photocopier, there are no other office sharing or work sharing arrangements between the lawyer/landlord and the prosecutor/tenant.
A lawyer and any staff are required to maintain the confidences or secrets of each client. MRPC 1.6(b)(1). Likewise, a lawyer shall exercise reasonable care to prevent employees from disclosing such confidences or secrets, MRPC 1.6(d). Moreover, the general rule regarding conflict of interest, MRPC 1.7(b)(1), states:
"A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities . . . to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected . . . ." See also, MRPC 1.8(a).
No doubt, certain types of space or office sharing arrangements may offer the appearance of a conflict of interest. CI-467. Indeed, an office sharing arrangement has been prohibited as between a prosecutor and opposing defense counsel in the county where both lawyers regularly practice, CI-706. The physical arrangement of the offices must prohibit access to confidential client information by keeping client files in an area to which only the prosecutor has access.
Here, however, a different circumstance exists. The situation presented constitutes a commercial, arms-length office rental arrangement. Because the lawyers affected have absolutely no formal or informal working arrangement, the mere existence of a landlord/tenant relationship should not impair the independent professional judgment of either counsel.
It is well established that the physical arrangement of the offices must prohibit access to confidential client information by keeping client files in an area to which only the prosecutor has access. Although it is possible to establish procedures which ensure the confidentiality of using a shared copier, we believe the better approach to be for the prosecutor to obtain a separate copier. The machine may jam, requiring maintenance from landlord personnel who would then be exposed to the contents of papers left in the machine.
Therefore, a criminal defense lawyer may rent office space for use by a county prosecutor, even though the lawyers may appear opposite from each other in cases representing conflicting parties, provided that the lawyers both maintain strict confidentiality as to their own files, and otherwise adhere to their respective ethical responsibilities.