Bar Counsel Notes: Conflicts/office sharing

Attorney A shares office space with Attorney B. Their law practices are not associated at all, and they each have separately described law office names. Their clients' files do not share any of the same office space, they have separate telephone lines and answering descriptions, but they do share the same receptionist and secretary. Is Attorney A allowed to represent a criminal defendant as a client, when the alleged victim is a client of Attorney B on current but unrelated matters?

Advisory Opinion #41 (8/23/83) states that such use of common employees who are entrusted with each attorney's confidential client information should not occur, at least not under the language of the conflict of interest Bar Rules back in 1983. That opinion remains the last official Maine opinion specifically addressing that subject, but Advisory Opinion #186 (7/22/04) provides guidance in its analogous discussion of the "screening restrictions" now required to be imposed by Bar Rule 3.13(c) on a nonlawyer newly employed by a law firm that represents the opposing party on a matter that the non-lawyer handled at her previous employer’s law firm. That opinion holds that proper screening under Rule 3.13(c) means that lawyers must have made reasonable efforts to have office management systems in effect that provide reasonable assurance that a non-lawyer employee never works on any current client's matter which she worked on or has "opposite party" information about due to her prior work for a law firm employer who represents (or represented) that adverse party. Reasoning from Maine Opinion #186 and having reviewed some opinions from other jurisdictions, it is our informal opinion that although office-sharers may use common receptionists, lawyers should, if at all feasible, not share secretaries or other support personnel who have access to substantive privileged information. If lawyers in separate firms must share a secretary or legal assistant, then they should confidentially exchange the names of clients/witnesses for purposes of conflict analysis, and for purposes of conflict analysis must avoid any representation that would be prohibited if they were part of the same law firm.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.