A shared office or hybrid office solution creates unique challenges for practitioners to safeguard their clients’ confidentiality. A recent formal opinion, American Bar Association Formal Opinion 507 (Opinion 507), addresses ethical considerations for practitioners when using office sharing arrangements, such as client confidentiality and conflicts of interest. Opinion 507 acknowledges that these office sharing arrangements are permissible and discusses how attorneys should address these ethical issues.
Reasonableness standard
Opinion 507 uses language that’s similar to a vague “reasonableness” standard used in various Opinions governing the use of technology generally. For example, ABA Formal Opinion 477 includes numerous references to taking “reasonable efforts” to protect client data, including in the preamble:
A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. (Emphasis added.)
What’s considered “reasonable efforts” will vary based on practice and circumstance. Also, as technology continues to evolve, what’s considered “reasonable efforts” 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, regardless of what particular actions are taken, are in fact reasonable within the framework of Opinion 507.
To accomplish this, firms should create a firm memorandum to discuss the firm’s use of technology, office sharing arrangements, the nature of the office sharing, how the firm employs the shared office and how no confidential client data may be left in the office sharing facility at any time.
For example, a firm that continues to have persistent paper files (for example, redwelds), a physical network housed in its office and a shared physical office it rents/owns with other firms will have different procedures in place than a firm that’s paperless, has only cloud-based solutions for data and a subscription with a third party providing it access to space in numerous office buildings. A paperless and hybrid firm may have its memorandum state that any confidential client data (for example, documents to be signed at an in-person meeting) will only be in the office at the same time their staff or attorneys are present and will be removed after the meeting. It may also address what’s being done to educate personnel to protect client data based on these considerations.
Client confidentiality
Opinion 507 states that lawyers must take “appropriate steps” to protect confidential client information, providing:
. . . 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 in their retainer agreement, firm brochures and/or on the firm website how their firms operate. 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 or documents that may display 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 common work area, caution is in order. In some instances, it may warrant renting private conference rooms, and staff and attorneys might be prohibited from using common work areas unless those work areas provide sufficient privacy so that non-firm personnel can’t view client confidential materials while attorneys are working there. That determination may vary among different providers and even among 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 view 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 currently compatible for use with touch screens.
Training
Training staff 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. In a shared rental office environment, precautions will be required to secure paper/physical documents if they’re ever left unattended. In reality, few if any law firms are 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.
*This article is an abbreviated version of “Ethics Considerations When Entering
Into Office Sharing Arrangements,” which originally appeared in the September 2023 issue of Trusts & Estates.