Opinion #41. Referring Cases to Attorney with Whom Office Space Is Shared

Issued by the Professional Ethics Commission

Date Issued: August 23, 1983

Question

Attorney A and Attorney B maintain separate law practices although they share office space, telephone and other equipment, and a secretary. In one matter, Attorney B represents a defendant regarding a claim that a client of A wishes to commence. In another, Attorney A represents a client who wishes to bring an action in which A may be called as a witness. A inquires whether he may refer the case to Attorney B.

Opinion

With respect to question #1, at least two issues are presented. A lawyer is enjoined by Bar Rule 3.4(b) not to accept employment if “the exercise of his independent professional judgment on behalf of a client . . . is likely to be adversely affected.” For reasons more fully discussed below, the Commission believes that the office‑sharing arrangement creates a certain mutual financial dependence which might compel them to decline employment in cases against the other under certain circumstances.

In addition, both A and B are required by Rule 3.6(1)(2) to “exercise reasonable care to prevent (their) . . . employees . . . from improperly disclosing or using confidences or secrets of a client.” Where, as here, A and B share the services of a secretary, the Commission believes that the danger that confidences will be revealed are too great to permit them to accept cases against each other. See San Diego City Bar Ass’n op. no. 1972‑8 and cases cited in Maru, Digest of Bar Ass’n Ethics Opinions, (1970) under “office sharers, conflict of interest.” The secretary, being an employee of both, would be placed in the impossible position of owing a duty, for example, to reveal to B the fact that his time was running out to file an answer or that he had neglected to subpoena a critical witness which she had learned from A’s communications with his client. Question #1 must therefore be answered in the negative.

With respect to question #2, somewhat different considerations are involved. Rule 3.4(j) provides that:

A lawyer shall not accept employment in contemplated or pending litigation if he knows . . . that he or a lawyer in his firm is likely or ought to be called as a witness.

Although A and B share space and other overhead expenses, they are not associated in the same “firm.” Since the rule is specifically so limited, B is not automatically prohibited from accepting a case in which it is likely that he will have to call A as a witness.

On the other hand, the Commission believes that, before accepting the employment, B is required by Rule 3.4(a) to disclose to the prospective client the potential problems which his space‑sharing relationship with A may present when the latter is called as a witness. It has been stated that:

The principal ethical objections to a lawyer’s testifying for his client as to contested issues are that the client’s case will, to that extent, be presented through testimony of an obviously interested witness who is subject to impeachment on that account. . . .

. . . The fact that a witness may be interested, even financially, in the outcome of the case, does not necessarily mean that he will testify falsely or will color or slant his testimony to favor the party with whom his interest rests. But given a choice between two or more witnesses competent to testify as to contested issues, and other factors being equal, a client’s cause is best served by having the testimony from the witness not subject to impeachment for interest in the outcome of the trial.

Because a trial advocate clearly possesses such an interest, his testimony or that of a lawyer in his firm is properly subject to inquiry based on such interest, perhaps including elements of his fee arrangement in some instances. Thus, the weight and credibility of testimony needed by the client may be discounted and in some cases the effect will de detrimental to the client’s cause. A.B.A. formal op. no. 339 (1975)

Many of the same considerations apply in the case presented. Although A and B retain a certain amount of freedom of action within the framework of their space‑sharing arrangement, their fortunes are nonetheless to some degree mutually intertwined. If B fails to pay his share of the Xerox or office rental or the secretary’s salary, A will risk losing these services. Thus, if as a result of A’s unfavorable testimony, his former client should lose the case, B’s fee may be reduced or the prospects of obtaining future referrals as a litigator diminished. In his capacity as a witness, A would be subject to cross examination regarding his affiliation with B and his vicarious pecuniary interest in the outcome of the litigation. Rule 3.4(a) requires that the client be advised of these disadvantages before the representation is undertaken in order to afford him an opportunity to hire another attorney who is totally independent of A so that the latter’s credibility will not be compromised.


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