Ethical Office Sharing

by Christian Stiegemeyer, Director of Risk Management
The Bar Plan Mutual Insurance Company

The standard of whether attorneys working under an office sharing arrangement will be held liable for the malpractice of their co-tenants is if a reasonable person would conclude that the attorneys were a firm. The factors used to determine whether such a conclusion is reasonable are varied but traditionally include the following:

1. Office space. Does the physical arrangement of the offices lend itself to the belief the lawyers are working as a firm? While it is permissible to share a common lobby or waiting area, the offices should be clearly identified as those of attorneys working independently.
2. Letterhead and business cards. Rule 4-7.5(a)-Firm Names and Letterheads, states "[A] lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1." A referral to Rule 4-7.1-Communication Concerning a Lawyer's Services, notes that it prohibits a lawyer from making a false or misleading communication about the lawyer or his or her services. Finally, Rule 4-7.1(f) prohibits lawyers from implying or stating they work in a firm or other organization unless they actually do. If lawyers use letterhead, business cards, etc., which imply that an office sharing arrangement is a firm, a client has a right to reasonably rely on those attorneys' decision to hold themselves out as such.
3. Advertising. Do the attorneys jointly advertise their services? If so, any implication that they operate as a firm may reasonably be relied on by the client. The safest way for an office sharing attorney to advertise is as he or she practices, as a sole practitioner. If an attorney decides he or she must pool advertising efforts with other attorneys, the ads must be clear that no partnership arrangement exists between the lawyers. Remember also that as lawyer advertising has become more prolific, legal malpractice lawyers are increasingly using the contents of the ads to demonstrate to a jury what their client's belief was as to the level of experience, ability, and service he or she would receive from the defendant lawyer. So in addition to meeting the standards of objectivity set forth in Rule 4-7.1, the content should be developed with the idea in mind that it may one day have to be defended in court as part of a malpractice suit.
4. General outward appearances. If the lawyers' names are listed on the building's doors or windows, each name should be followed by the legal status of the individual lawyer's practice, for example, P.C. or L.L.C. The names should be arranged in a manner that clearly indicates they are separate entities. The manner in which the receptionist answers the phones may convey the impression that a client is dealing with a firm. For example, a greeting that says, "Law office," indicates a single firm, while answering with, "Law offices," indicates an office sharing arrangement.

Various statutes also dictate how a lawyer's corporate status is conveyed to the public. Section 356.071.1(1) R.S.Mo. states that a professional corporation must include the words "Professional Corporation" or "P.C." in its name and identify itself with that designation in the course of rendering any professional services. Section 358.450.1 R.S.Mo. states that the name of a Limited Liability Partnership must contain the words "Registered Limited Liability Partnership" or the abbreviation "L.L.P." or ''LLP" as the last words of its name. Section 347.020, RSMo states that as a general rule a Limited Liability Corporation shall transact business under the name set forth in its articles of incorporation, which must include "limited company" or "limited liability company" or "L.C." or "L.L.C."

Failure to comply with these statutes may result in sanctions imposed by the Secretary of State's Office and in some more egregious circumstances, loss of the protection granted by the corporate status. The Office of Chief Disciplinary Counsel, in Informal Opinion 940048, advised that the failure to provide in a lawyer's letterhead information of a lawyer's corporate status violated Rules 4-7.1-Communications Concerning a Lawyer's Services and 4-7.5(f)-Firm Names and Letterheads.