Ohio Board Advisory Opinion Op 91-009

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The Suprerre Caturt of Ohio

BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE

41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 91-9
Issued Apnil 12, 1991
Withdrawn by Adv. Op. 2022-11

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]

[Not current-subsequent rule amendments to DR 2-107, eff: Aug. 1, 1990; DR 7-107, eff. Jan. 1, 1996.]

SYLLABUS: Attomeys who maintain separate law practices within the same building are not
lawyers in the "same firm" for purposes of DR 2-107 (A); therefore, these attomeys must comply
with restrictions on division of fees contained within DR 2-107.

In order to preserve client confidences and secrets as required by DR 4-101, attomeys with separate
law practices in the same building must maintain filing systems separate from and inaccessible to
other attomeys. Computer access to client files must be limited to the client's attomey and staff in
the absence of full disclosure to and consent of the client.

It is proper for attomeys who maintain separate practices to share non-lawyer personnel provided
that each attomey exercise reasonable care to prevent the employees from disclosing or using
confidences or secrets of a client as required by DR 4-101.

OPINION: We have before us a request for an advisory opinion on the application of various
disciplinary rules to attomeys who maintain separate law practices within the same building but
wish to share fees, expenses, and services. Three questions are raised:

1. Whether there are restrictions on the division of fees among attomeys who have
separate law practices in the same building, but who collaborate on legal
matters;

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2. Whether, in order to preserve client confidences and secrets, attomeys with
separate law practices in the same building must maintain separate filing and
computer systems inaccessible to the other attomeys and their staffs;

3. Whether it would be proper for attomeys who maintain separate law practices to
share non-lawyer staff?

Op. 91-9 2
DR 2-107 of the Code of Professional Responsibility (Code) regulates the division of fees among
lawyers and clearly applies restrictions on the division of fees by attorneys "who are not in the
same firm." It is the opinion of the Board that attorneys maintaining separate law practices within
the same building are not lawyers in the "same firm" for purposes of DR 2-107 (A). Therefore,
these attorneys must comply with restrictions on division of fees contained within DR 2-107. For a
more complete discussion on the division of fees, see Ohio SupCt, Op. 91-5 (1991).
The Code does not specifically prohibit the sharing of office space, equipment, personnel, or
expenses among lawyers. However, under DR 4-101 which governs the preservation of client
confidences and secrets, the attorney has an affirmative duty not to reveal or use a confidence or
secret of his client, except when permitted by the rule. DR 4-101 (A) (B) (C). The lawyer also has
the affirmative duty to exercise reasonable care to prevent employees, associates, and others from
disclosing or using confidences of a client. EC 4-2, DR 4-101 (D).
The purpose of the DR 4-101 restrictions is to preserve the candor between client and attorney
required for proper functioning of the legal system and to maintain the fiduciary relationship
between client and lawyer. EC 4-1. Also, the ethical obligation to preserve confidences and
secrets of a client facilitates proper representation of clients and encourages the public to seek early
legal assistance. EC 4-1.
A lawyer may disclose the affairs of his clients to partners or associates of his firm, unless the
client otherwise directs. EC 4-2. However, the Code does not authorize the sharing of client
confidences and secrets among attorneys with separate practices. DR 4-101. Thus, in the absence
of client consent after full disclosure, a lawyer should not associate with another lawyer nor seek
counsel from another lawyer if there is a reasonable possibility that the identity of the client or his
confidences or secrets would be revealed. EC 4-2. Since DR 4-101 C (1) clearly requires consent
and full disclosure to clients prior to revealing confidences or secrets, attorneys with separate
practices who wish to co-counsel on client matters should comply with DR 4-101 (C) (1). These
attorneys should also comply with DR 2-107 (A).

Op. 91-9 3
The Advisory Committee on Professional Ethics of the Supreme Court of New Jersey has opined
that a lawyer may share word processing and other computer facilities with a lawyer in an adjacent
office, but reasonable care must be taken to prevent employees and associates from disclosing or
using client confidences or secrets. New Jersey SupCt, Op. 515 (1983). Similarly, the Legal Ethics
Committee of the Oregon State Bar stated that lawyers who share office space can maintain a
common file room but must preserve confidences and secrets by guidelines which perhaps could
provide for maintaining separate, secured file systems. Oregon State Bar, Op. 486 (1983).
It is the opinion of this Board that in order to preserve client confidences and secrets as required by
DR 4-101, attorneys with separate law practices in the same building must maintain filing systems
separate from and inaccessible to other attorneys. Computer access to client files must be limited
to the client's attorney and staff in the absence of full disclosure to and consent of the client.
A more flexible rule applies to the sharing of non-lawyer staff services. DR 4-101 (D) places a
duty of reasonable care to prevent non-lawyer personnel from violating the preservation of client
confidences and secrets:
A lawyer shall exercise reasonable care to prevent his employees, associates, and
others whose services are utilized by him 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.
Code of Professional Responsibility DR 4-101 (D).
The Code acknowledges that the normal operation of a law office exposes confidential professional
information to non-lawyer employees and that this obligates a lawyer to select and train his
employees carefully in order to preserve the sanctity of client confidences and secrets. EC 4-2. DR
7-107 (J) places a related duty upon a lawyer to prevent employees from making extrajudicial
statements on confidential matters.

Op. 91-9 4
ABA Model Rule 5.3 (a) regarding non-lawyer assistants, suggests that a partner in a firm must
make reasonable efforts "to ensure that the firm has in effect measures giving reasonable assurance
that the person's conduct is compatible with the professional obligations of the lawyer." Under
Model Rule 5.3 (b), reasonable efforts must also be made by a lawyer with supervisory authority
over a non-lawyer "to ensure that the person's conduct is compatible with the professional
obligations of the lawyer." The rule also deems a lawyer responsible for the conduct of the non-
lawyer assistant under certain circumstances. Model Rule 5.3 (c). The Comment to Model Rule
5.3 advises that the lawyer should give instruction and supervision to assistants regarding ethical
aspects of employment, particularly the obligation not to disclose information relating to
representation of the client.
The Committee on Professional Ethics of the State Bar of Wisconsin has expressed the opinion that
a district attorney's office and a circuit judge's office may share the services of a non-lawyer
employee provided that both offices exercise reasonable care in instructing and supervising the
employee regarding confidentiality of documents and communications. Op. E-86-13 (1986).
It is the opinion of this Board that it is proper for attorneys who maintain separate practices to share
non-lawyer personnel provided that each attorney exercise reasonable care to prevent his
employees from disclosing or using confidences or secrets of a client as required by DR 4-101.
The Board suggests that in an effort to avoid potential conflicts, the lawyers disclose to their clients
that non-lawyer personnel are shared by lawyers with separate law practices.
This is an informal, non-binding advisory opinion based on the facts presented and limited to
questions arising under the Code of Professional Responsibility.