New Guidance Issued on Virtual Office Sharing ArrangementsNew Guidance Issued on Virtual Office Sharing Arrangements
A new opinion addresses how attorneys should meet ethical requirements for client confidentiality.
A recent ABA Formal Opinion 507 addresses office sharing arrangements, which are becoming more common post-COVID. More virtual offices mean that law practices don’t need “brick and mortal” office space (that is, space owned or rented by the firm) just for themselves. Instead, two or more law practices share certain common office facilities, overhead expenses (for example, rent, furniture, equipment and even utilities) and perhaps support staff (for example, a common receptionist, office assistants and perhaps paralegals). Such arrangements may be more cost effective and nimble, especially for smaller or solo practitioners. A similar arrangement is the more recent growth in the use of flexible or hybrid office solutions offered by firms that may provide an address and conference rooms, work space, etc. for any type of business, not just compatible law firms.
This type of office sharing also raises ethical issues, such as client confidentiality and conflicts of interest. Opinion 507 acknowledges these office sharing arrangements are permissible and addresses how attorneys should handle these ethical issues.
Overview
Opinion 507 provides an overview in its own introduction:
It is generally permissible for lawyers to participate in office sharing arrangements with other lawyers under the ABA Model Rules of Professional Conduct. At the same time, office sharing lawyers should appreciate that such arrangements will require them to take appropriate measures to comply with their ethical duties concerning the confidentiality of information, conflicts of interest, supervision of non-lawyers, and communications about their services. The nature and extent of any additional safeguards will necessarily depend on the circumstances of each arrangement.
Reasonableness Standard
Opinion 507 uses the similar and vague “reasonableness” standard used in various opinions governing the use of technology generally (for example, Opinion 47). What’s “reasonable” will vary based on practice and circumstance. Also, as technology continues to evolve, what’s “reasonable” today may not be so tomorrow and vice versa. But, that type of standard might suggest that firms and practitioners consider taking steps to corroborate what they’re doing to show that their actions are in fact reasonable within the framework of the opinion. To accomplish this, consider creating a firm memorandum to discuss your technology, office sharing arrangements, the nature of the office sharing, how your firm uses it and how no confidential client data would be left in the office sharing facility at any time (for example, if the firm is paperless and cloud based), that data (for example, documents to be signed at an in-person meeting) will only be in the office at the same time staff or attorneys are present and what’s being done to educate personnel of these considerations, etc.
Client Confidentiality
Opinion 507 states that “Lawyers participating in these arrangements must take appropriate steps to secure client information and clearly communicate the nature of the relationship to the public and their clients.”
To meet this requirement, firms should communicate how their firms operate in their retainer agreement, firm brochures and/or the firm website. A virtual practice that’s only using hybrid physical office arrangements could use a disclosure that says something like this:
The firm uses office rental sharing arrangements to accommodate clients and can meet at any such location that is most convenient for the client. These arrangements, however, entail outside unrelated businesses, using the same facilities at the same time. While conference rooms are private, reception and other common areas are not occupied only by our firm. Thus, confidential discussions and display of confidential materials should be done only with caution, if at all, in such areas.
Opinion 507 also states: “The physical arrangement of the shared office space, however, must not expose client information to other office-sharing lawyers and their staff. Everyone should also avoid discussing cases in or near common areas, which could lead to the disclosure of client information.” This may present yet another issue. Hybrid office rental arrangements may have common work areas. If a staff member or attorney will be working before or after a client meeting in a private conference, caution is in order. In some instances, it may warrant renting private rooms for such use, and staff and attorneys might be prohibited from using common work areas unless those work areas provide sufficiently privacy that non-firm personnel can’t view client confidential materials while attorneys are working there. That determination may vary between different providers and even between different locations of the same provider.
Opinion 507 states: “installing privacy screens on computer monitors and locking down computers when not actively in use; clean desk policies; and regular training and reminders to staff of the need to keep all client information confidential.” Privacy screens are filters/films attached to laptops or portable monitors that black out the screen when viewed from the side, while maintaining a clear screen views straight-on. That may be relevant sitting on an airplane but may not be helpful or even necessary in an office sharing arrangement. Also, privacy screens aren’t compatible for use with touch screens.
Training
Training to be alert to the issues raised in Opinion 507 may be advisable. It may also be advisable for a staff member to vet each hybrid office location and advise staff and attorneys using it as to the implications of the different work environments at each location. When working in a shared rental office environment, precautions will be required to secure paper/physical documents if ever left unattended. In reality, few if any law firms are totally paperless as will signings may still be handled in the traditional paper, and wet signature manner given the limitations on fully electronic/remote will signings If staff or an attorney goes to lunch or a meeting outside the hybrid office location, there may not be any practical means of locking or securing a temporary office so that computers may have to be locked/password protected to open or taken physically with the staff or attorney leaving and returning.
How to Handle Specific Services
Here’s how best to handle some of the common services hybrid office/shared space providers may offer so as to maintain confidentiality:
Lobby greeter or receptionist. Firms may limit the information provided to a common receptions and request that client names not be announced in a public space
Business support center. Consider whether confidential client information can be processed in a central support center where the firm has no control over the personnel, can’t train the personnel as to confidentiality and may not be able to control whether physical documents or even typing is visible by unknown people. But in reality, how different is this than a firm having used outside print firms for large photocopy projects or outsourcing typing and other services? These aren’t new, and having these done in a hybrid office environment should present similar issues to those historically addressed. Perhaps, Opinion 507 is a reminder to firms to deliberately address confidentiality issues these arrangements create.
Mail services. Confidential client mail being handled by non-staff persons. Strict instructions might be given and a sign posted that mail shouldn’t be opened, only sorted or forwarded as instructed.
High-speed internet. When this is provided as a service, it may be no different than rules firms may already have in place for using public Wi-Fi in locations such as a coffeeshop. Consider having precautions and safeguards on software used by firm members on the public internet.
Phone answering services. If an operator is to handle client phone calls, how might that be addressed to control the dissemination of confidential client information? That may be no different than the common use of answering services and virtual receptionists that have been common for many years.
Ability to rent meeting rooms. Individual meeting rooms may be secure when in use, but use caution if a lunch or other break to secure any physical papers or devises that might be left in the room.
