Bell: 3 things to know about ethics and office space

Remember when we used to make fun of “The Lincoln Lawyer” because he worked out of his car? Maybe we should not cast too many stones. While most lawyers are not working out of their cars, many are working from their basements or out of their backpacks. Some meet with clients in public settings like Starbucks. Other lawyers are working in commercially provided virtual office spaces.

What it means to work “at” a law office has changed, and the ABA’s Standing Committee on Ethics and Professional Responsibility has dedicated two of its ethics opinions in the last two years to the subject of office space. Here are three things to know about ethics and office space.

1. You don’t need a brick-and-mortar office

In 2021, the ABA stated that “there is no requirement in the Model Rules that a lawyer have a brick-and-mortar office.” ABA Formal Opinion 498, pp. 1-2. That was somewhat of a relief for lawyers who were working out of a spare bedroom or a virtual office.

ABA Formal Opinion 498 outlined ways to avoid problems when working from a virtual office, but in essence, it outlined what was true for all offices: No matter where lawyers are, they are required to preserve client confidentiality, continue to be diligent in their cases and maintain communications with their clients.

The real value of this opinion was its discussion of “some common virtual practice issues” that included topics like accessing client files and data, virtual meeting platforms, and virtual document and data exchange programs. The Indiana Rules of Professional Conduct require us to “keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice.” See Comment [6] to Indiana Rule of Professional Conduct 1.1. Id. at 4-8. If you work alone or are otherwise in charge of your own technology, then you should review this opinion.

2. Indiana lawyers can practice Indiana law from anywhere

Remember in May 2020 when you wore a business suit on the top half of your body and a swimsuit and flip flops on the bottom half because you were in Florida attending a virtual status conference?

Thank goodness the ABA Standing Committee on Ethics OK’d that. Specifically, it stated that “in the absence of a local jurisdiction’s finding that the activity constitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.” ABA Formal Opinion 498, pp. 3-4. In other words, it is OK for an Indiana lawyer to advise Indiana clients on Indiana issues while sitting in Florida. (Also, this is a good time to remind you to wear sunscreen.)

3. Office sharing arrangements: Confidentiality, physical layout of office, staff and conflicts of interest

Indiana lawyers have been sharing expenses in one way or another for years, but with the advent of commercial “virtual offices,” a lawyer may be sharing resources with strangers in different industries. Therefore, new confidentiality considerations arise.

For example, unlike a traditional law firm where everyone in the office represents one side of an issue, the physical layout of a shared office needs to be considered. Confidentiality likes walls. If the workspace is “open” in your virtual office, consider who is listening to your calls, where you are leaving your files, whether you need to install privacy screens on computer monitors, who sees whom in waiting rooms and locking your computer when it is not being used. ABA Formal Opinion 507 at p. 2.

If you are involved in an office sharing arrangement, does the staff work for you and your firm only, or does the staff work for others, as well? When you give your staff member a file or tell that staff member information about a case, does your staff member know not to share that information with others?

The sharing of confidential information may determine whether an office sharing arrangement is a firm and, therefore, whether there is a conflict of interest when two lawyers in the office are on the other side of an issue. For example, in Matter of Recker, 902 N.E.2d 225, the key issue in the case was whether the two public defenders were members of the same “law firm,” and the determination of the issue came down to whether the sole staff member in the office shared confidential information. Matter of Recker, 902 N.E.2d 225, 226-7 (Ind. 2009).

If there is shared information within an office arrangement, then it is more likely that the members of the office will be considered a “firm.” If the office is considered a firm, then, of course, conflicts of interest are more likely to arise.

Conclusion

Where we work and how we work has changed quickly over the past several years. We can work anywhere, and we are not required to work in a brick-and-mortar office building. However, when we are not surrounded by walls or members of our own firm, protecting client information, training staff on confidentiality and staying abreast of technology become more important.•

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James J. Bell is a partner at Hoover Hull Turner LLP. Opinions expressed are those of the author.