Ethics Opinion 881

Ethics Opinion 881

10.6.2011

By Committee on Professional Ethics

New York State Bar Association
Committee on Professional Ethics

Facilities, sharing office space, working with spouse

Opinion #881 (10/06/2011)
Topic:        Spouses sharing office facilities.
Digest:      A sole practitioner may not use the address and telephone number of her spouse’s law firm as contact information if the telephone is answered with the name of the spouse’s firm unless steps are taken to avoid the misleading impression that the sole practitioner is part of the spouse’s firm. However, the sole practitioner’s occasional use of the conference room and telephone lines at her spouse’s firm does not, by itself, render her “associated in” her spouse’s law firm for purposes of conflicts of interest.
Rules:       1.0(h), 1.10(a), 7.1(a), 7.5(b)

QUESTION

OPINION

Question A:   May the Sole Practitioner Use the Address and Telephone Number of Her Spouse’s Law Firm?

1. In the New York Rules of Professional Conduct (the “Rules”), Rule 7.1(a) prohibits a lawyer from engaging in misleading public communications about the lawyer for the purpose of seeking retention by prospective clients, and Rule 7.5(b) prohibits a lawyer from practicing under a misleading firm name.  We are told that the telephone at the spouse’s firm is answered with the name of the spouse’s firm. Thus, a client or prospective client calling the sole practitioner would be greeted with the name of the spouse’s firm, not the name of the sole practitioner.  If the firm’s switchboard operator or the firm’s automated answering message fails to clarify that the sole practitioner is not associated with the firm, but instead forwards the call to the sole practitioner, or takes a message for her, or simply states that the sole practitioner is unavailable, then the caller would likely be misled into believing that the sole practitioner is part of the spouse’s firm. And if the sole practitioner’s name is added to the name of the spouse’s firm when the telephone is answered, that might violate Rule 7.5(c), which provides that lawyers “shall not hold themselves out as having a partnership with one or more other lawyers unless they are in fact partners.”

1. The use of the firm address by itself would not necessarily create the same misleading perception, but it would be improper for the sole practitioner to use both the address and telephone number of the spouse’s firm as if they were the inquiring lawyer’s own when, in truth, they are not. We conclude that the inquirer’s use of the spouse’s phone number as contact information, without clarification, is misleading to clients and others. The spousal relationship in a small community could only compound the confusion, especially if the inquirer and the inquirer’s spouse use the same last name. As a better practice, the inquirer should consider using a separate telephone number (rather than the spouse’s telephone number) to avoid confusion.

1. If the sole practitioner lists the telephone number and address of her spouse’s firm on her letterhead, that could present another issue for the inquirer. Rule 7.5(a), whose predecessor in the Code was DR 2-102(A), provides as follows:

(a) A lawyer or law firm may use internet web sites, professional cards, professional announcement cards, office signs, letterheads or similar professional notices or devices, provided the same do not violate any statute or court rule and are in accordance with Rule 7.1 ….

1. In N.Y. State 546 (1982), we addressed the circumstances under which a law firm could list a “branch office” address for an office that was staffed only occasionally. Appling DR 2-101(A) and DR 2-102(A), we said:

[W]e believe that a law firm listing an office on its letterhead must do more than staff that office from time to time unless that limitation on staffing is made clear. There is, we believe, an implied representation from such listing that the firm has made arrangements to respond in a timely fashion to all inquiries addressed to that office, to provide legal services from that office as the need may arise, and hold meetings there. If the firm has not made such arrangements, it cannot list its branch office without some appropriate disclaimer indicating the limited hours of its operation.

1. By listing the address and telephone number of her spouse’s law firm on her letterhead, the sole practitioner is making an implied representation that she has made arrangements for her spouse’s firm “to respond in a timely fashion to all inquiries [to the sole practitioner] addressed to that office,” and that she herself will “provide legal services from that office as the need may arise” and “hold meetings there.” We do not know whether the sole practitioner has made those arrangements and commitments. If she has, then she may use her spouse’s office address and telephone number as her own, provided that the sole practitioner also arranges for the person or machine that answers the telephone at the spouse’s law firm to clarify that the sole practitioner is not associated with the firm (or arranges for the phone to be answered with a neutral phrase such as “law offices” without any names, or takes other steps to avoid the misleading impression that the sole practitioner is part of the spouse’s firm).

1. Practitioner has not made such arrangements and commitments, however, then putting her spouse’s law firm address and telephone number on her own letterhead would violate Rule 7.5(a) without some appropriate disclaimer indicating the limited availability of that office (e.g., saying “By appointment only” or listing specific hours when she is available at that address). Without such a disclaimer, listing the spouse’s law office address would be misleading, and thus would not be “in accordance with Rule 7.1,” which prohibits false, deceptive or misleading communications.

Question B:    Is the Sole Practitioner “Associated With” Her Spouse’s Law Firm for Purposes of Conflict Imputation?

1.  Rule 1.10(a), New York’s basic rule on the imputation of conflicts of interest, provides as follows:

While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein.

1.  Whether a particular arrangement between lawyers, be it one for office sharing or some other form of coordination, makes those lawyers “associated in” a single “firm” for conflicts purposes is a fact-intensive inquiry. Rule 1.0(h), in the Terminology section of the New York Rules of Professional Conduct, provides that a “firm” or “law firm” “includes, but is not limited to, a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law ….” (Emphasis added).

1.  Comment [2] to Rule 1.0 elaborates by providing, in relevant part, as follows:

[2] Whether two or more lawyers constitute a firm … will 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 that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve.  Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved.  For example, a group of lawyers could be regarded as a firm for purposes of determining whether a conflict of interest exists but not for application of the advertising rules.

1.  We do not believe that the sole practitioner’s occasional use of her spouse’s telephone lines or conference space by themselves render the inquirer “associated in” the spouse’s firm for purposes of the conflicts imputation rule, Rule 1.10(a).  See N.Y. State 715 (1999) (noting that “lawyers who share office space but are not in the same firm have been deemed to be ‘associated’ in a firm for purposes of the conflicts rules and vicarious disqualification rules,” but also setting forth guidelines for avoiding the conflicts problem). However, our conclusion would be different if they “present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm,” because in that case, per Comment [2], “they should be regarded as a firm for purposes of the Rules.”

CONCLUSION

1.   A lawyer who occasionally uses the conference room and telephone lines at her spouse’s law firm may not use the address and telephone number of the spouse’s law firm as contact information if the telephone is answered with the name of the spouse’s firm, unless steps are taken to avoid the misleading impression that the sole practitioner is part of the spouse’s firm. The sole practitioner’s occasional use of her spouse’s telephone lines or conference space does not, by itself, render the inquirer “associated in” the spouse’s firm for purposes of the rule on imputation of conflicts.

(25-10)