Even in today’s increasingly online world, many lawyers still prefer to have a physical office. Those that do often find it convenient (and, importantly, cheaper) to share office space with other legal or non-legal professionals. Sharing office space, whether with another lawyer or someone outside of the legal profession, is not prohibited. However, there are a few ethical risks that Michigan lawyers should be careful to avoid so that they do not violate the Michigan Rules of Professional Conduct (MRPC). Several rules of professional conduct and Ethics Opinions impose duties on lawyers sharing office space, but they all boil down to one important principle: The independence of the practices must be thoroughly maintained.

OFFICE SHARING DEFINED

First, it must be established whether two or more lawyers sharing office space are merely office sharing or if they constitute a “firm” under the definition of firm found in the MRPCs. MRPC 1.0 defines the term “firm” as “a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization, and lawyers employed in a legal services organization.” Further, the Comment to 1.10 provides the following explanation:

Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the rules.

Thus, determining whether two or more lawyers make up a firm or are merely sharing office space is a fact-specific analysis and must be determined on a case-by-case basis. Moreover, if the lawyers are “of counsel,” they are considered one firm for the purposes of conflicts of interest.¹

ADVERTISING AND ACCURACY OF COMMUNICATIONS

All lawyer advertisements must comply with the MRPCs 7.1-7.5, which govern communications regarding legal services, advertising, and solicitation. “Advertising is generally permitted, within limits, under MRPC 7.1. Materials which are false, fraudulent, misleading or deceptive are out-of-bounds under that rule.”² As it relates to office sharing, a solo practitioner cannot use a firm name that indicates they are in a multi-person firm such as “Lawyer & Associates.”³ If Lawyer A and Lawyer B share office space but otherwise conduct their practices independently, it would be misleading to use both their names in any communications, as it might mislead people to think that they operate a firm together. As the Comment to MRPC 7.5 explains, “Lawyers sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, ‘Smith and Jones,’ for that title suggests partnership in the practice of law.” This logic applies to all communications about the lawyers’ firms, including letterhead, business cards, advertisements, and door signs. It should never be implied that the office-sharing lawyers are in practice together. Communications including advertisements, signs, and business cards must not lead a potential client to believe that the lawyer is associated or affiliated with the other lawyers sharing their office space.

Further, phone lines must not be answered “Lawyer A and Lawyer B’s office,” as doing so would run afoul of the advertising rules by creating a misconception regarding the independence of the practices. Instead, each firm should have a separate phone number. Office sharers may share a common receptionist but, under MRPC 5.1 and 5.3, must ensure that they have taken reasonable steps to guarantee that the receptionist, a nonlawyer employee, understands and carries out the lawyers’ ethical obligation to maintain the independence of the practice.⁴

CONFIDENTIALITY

Lawyers have an affirmative duty under MRPC 1.6 to protect their clients’ confidences and secrets. Thus, files of one lawyer must be protected from access by the other lawyers who use the office space. This may involve, for example, locking any physical files away when the lawyer is out of the office or prohibiting access to any electronic files through sufficient cybersecurity measures. Even in situations involving insurance staff counsel where attorneys are employed by an insurance company to represent the company’s policy holders in litigation matters, the staff counsel may share a common entrance with the insurance company only if appropriate safeguards are in place to maintain client confidences.⁵

Office sharers may not share a common phone line or fax line.⁶ Doing so may lead clients or prospective clients to reveal confidential information when trying to reach one of the office sharers, not realizing that all office sharers have access to the phone or fax line.

SOLICITATION AND FEES

Under MRPC 7.2(c) and 7.3, the office sharers must ensure that no improper solicita tion of clients or referrals to and from the office sharers take place.

INDEPENDENT PROFESSIONAL JUDGMENT

MRPC 5.4(c) instructs that office sharers must ensure that they exercise independent professional judgment in their practices and do not allow undue influence from the other lawyers sharing the office.

CONFLICTS OF INTEREST

Each lawyer has an individual duty to ensure that any work undertaken does not conflict with duties and obligations to other clients.⁷ “When one office-sharer has a conflict of interest prohibiting representation of a private client, the conflict is not per se imputed to other office-sharers.”⁸ MRPC 1.10 makes it clear “that a conflict of one office sharer is not imputed to the others unless they are deemed to be ‘associated in a firm.’”⁹ If a lawyer has been disqualified from acting as trial counsel for a client, the other lawyers who share office space are not imputedly disqualified from acting as trial counsel if they are not independently disqualified from acting as trial counsel under MRPC 1.7 or 1.9.¹⁰ However, if the office sharers regularly appear as co-counsel, “of counsel,” or otherwise assist on each other’s cases, conflict of interest issues may be more prevalent, and disqualification may become necessary.

THOSE IN NON-LAW BUSINESSES

Sharing office space with non-lawyers is allowed under the MRPCs. Lawyers should handle such situations with extreme care, as issues of confidentiality are even more prevalent when sharing office space with non-lawyers. The businesses must maintain their independence, protect client confidences, and ensure that “public communications about each business entity are clear.”¹¹ The protection of files from access by any non-lawyers is, of course, paramount. File retention policies should be in place to protect the lawyer’s files from access by those associated with the non-law business.¹² Further, extra care should be taken to ensure that cli ents and members of the public are aware that the law firm and non-law business are not in any way affiliated with each other. Ethics Opinions discussing office sharing with non-law businesses emphasize that the law firm and non-law business must maintain “physical separation of the offices so that the businesses remain distinct.”¹³ For example, “While use of a common conference room is allowed, it cannot be used by the lawyer as a law library or in any way suggest a connection between the legal and non-legal businesses.”¹⁴ In Ethics Opinion RI-313, a lawyer inquired about sharing office space with an accounting firm with which it had no professional relationship. RI-313 concludes that lawyers may share office space with non-lawyer businesses so long as “the businesses are segregated, client confidences are protected, and public communications about each business entity are clear and do not create unjustified expectations about the results which can be achieved.”¹⁵ Common areas must be arranged so that the law business and non-law business remain separate to avoid misunderstandings by the public. That separation of businesses is also of utmost importance when considering a home office sharing arrangement by a lawyer and their non-lawyer spouse.¹⁶

Further, a lawyer’s law office may share space with the lawyer’s own non-law business, provided that the “businesses are segregated, client confidences are protected, and public communications about each business entity are clear and do not create unjustified expectations about the results which can be achieved.”¹⁷

CO-WORKING SPACES

A co-working space is a shared, fully serviced work environment where entrepreneurs, freelancers, remote workers, those traveling on business, and others in need of a temporary workspace can lease an office space with shared amenities such as Wi-Fi, conference rooms, and office equipment like printers and fax machines. Coworking spaces often offer daily, weekly, monthly, or yearly rentals to serve a diverse clientele. Some coworking spaces offer private, locked offices, and some offer a shared workspace to emphasize networking and community-building opportunities. Coworking spaces started opening across the country in the early 2000s and gained popularity only through the remote work boom following the coronavirus pandemic.

While they offer flexibility and affordable rental opportunities, coworking arrangements raise several ethical concerns, especially when the space is shared between lawyers and nonlawyers. Because of these heightened risks, lawyers must exercise caution, especially if the space is shared with non-lawyers. All the previously mentioned ethical concerns remain present in coworking environments, perhaps to an even greater extent. If a lawyer is renting office space as needed, the assignment of an office space may be random and the office space accessible by others not associated with the law business. “Such an arrangement necessarily heightens the duty of the inquiring lawyer to ensure that file retention comports with Rules 1.6 and 1.15 (b) and also raises Rules 5.4(b) and 5.5 concerns.”¹⁸ Lastly, lawyers may meet with clients at coworking spaces but must not identify the location as a law office in communications governed by 7.1 without having a dedicated office space with the necessary separation from other businesses.¹⁹

CONCLUSION

Sharing office space can be a convenient and affordable way for lawyers to maintain a physical office. As the legal field embraces remote proceedings, electronic file storage becomes the norm, and commercial rent continues to rise, finding more affordable options for officing becomes increasingly important. Sharing office space is allowed under our professional ethics rules, but there is risk involved. Michigan lawyers should be careful to avoid the ethical pitfalls discussed above so that they do not violate the MRPCs. Maintaining the independence of the practices is of para mount importance. By following the advice laid out above, lawyers can ensure that they and their office sharers protect their clients’ interests and avoid discipline.