Summary: Where one member of a group of lawyers who practice together from the same suite of offices and share some of the costs of the practice brings a contested suit on behalf of a plaintiff client, no other member of the group may ethically represent a defendant client in the suit, unless (1) each of the lawyers uses separate stationery, with his own name only on it, and does not join his name with others on cards, law lists, or telephone directories, and the door of the group does not contain the names of the persons practicing therein more closely connected than as follows: "Law Offices--Charles W. Jones--Peter S. Smith," and (2) each client consents after full disclosure of the extent to which the suite of offices, files and personnel are shared by their lawyers.
Facts: A group of nine lawyers have a suite of offices. Each attorney is a sole practitioner, with his own clients, cases and workload; they do not constitute a professional corporation or a partnership; and there are no written agreements among them. They all share the same library, secretaries and receptionist; each pays a pro rata share of the expenses involved, including rent, electricity and other charges. In the reception area and the Lawyers Diary the group is listed as "A, B, C & D." On the letterhead is listed the name "A, B, C & D, Counsellors at Law," with a single address and telephone number. On the left-hand side of the group's stationery are listed the names of A, B, C and D above a line and the names of E, F, G, H and I below the line, while on the left-hand side is listed "Of Counsel, J."
Attorney G has brought suit on behalf of a client against four defendants. He asks whether one of the other lawyers in the group may ethically represent one or more of the defendants in the action.
Discussion: If the lawyers in the group in fact were partners in a firm, or associates of the firm, none of them could ethically represent any of the defendants in the case, once another partner or associate had undertaken to represent the plaintiff in a contested suit. DR 5-105(D) provides: "If a lawyer is required to decline employment or to withdraw from employment under DR 5-105 [on account of a conflict of interest], no partner or associate of his firm may accept or continue such employment." Since G, attorney for the plaintiff, could not also represent a defendant in a contested suite, under DR 5-105(D), all his partners and associates would be similarly barred from representing a defendant. This would be true whether or not both clients consented after full disclosure, since it would never be obvious that G could adequately represent the interests of both plaintiff and defendant in a contested suit, a pre-condition to a lawyer's representing multiple clients, even after full disclosure under DR 5-105(C).
Even where the lawyers in the group involved in this inquiry are neither partners nor associates in fact, which appears to be the case here, we would reach the same conclusion. A group of lawyers practicing together in the same suite of offices, using a name such as "A B C & D," and/or listing some of the lawyers in the group as apparently associated with others in the group, would appear to the general public to be partners, or at least associated in some other way, with common personnel, files and business ties of some kind or other. This would make the "zealous representation" of the opposing parties and preservation of their "confidences and secrets" by two of the lawyers in the group, mandated by Canons 4 and 7, appear highly improbable, and would create "the appearance of professional impropriety" which Canon 9 directs all lawyers to avoid. Consent of both parties after full disclosure would also be irrelevant. Since the lawyers in the group practice together in a manner which creates a public image that they are associated in some way, they should be held to the limitations applicable to true partners and associates in DR 5-105(D).
A group of individual lawyers (neither partners nor associates in fact) may wish to practice law together from the same suite of offices and share in some of the costs of the practice, but with each lawyer having his own clients and not sharing in the responsibility and liability of each other, without creating a public image that they are partners or are associated in some other way. In Formal Opinion 310, June 20, 1963, the ABA Committee on Professional Ethics has indicated how this may be done as follows: "Each lawyer should use separate stationery, with his own name and not that of a firm on it. He should not join his name with others on cards, in law lists, or telephone directories. The door of the group, when otherwise appropriate, may contain the names of the persons practicing therein no more closely connected than the following example:
Charles R. Jones
Peter S. Smith
If the lawyers in the group thus negate any clear public representation that they are partners or associated in some other way, and they are not in fact partners and/or associates, we do not believe that DR 5-105 would prohibit a second member of the group from representing one party to a contested litigation, if one of its members had already agreed to represent an opposing party in the same suit. Since the precise nature and extent of their common offices, files and personnel would hardly be evident to the clients, however, we believe that each client is entitled to full disclosure of these matters. Unless both clients consent, after such full disclosure, we do not believe that the second lawyer in the group could ethically represent another party, after one of them had already agreed to represent an opposing party in the same suit. Only thus we believe, can each client secure his right to "zealous representation" by his own lawyer and be assured that his own lawyer and his lawyer's employees can and will "preserve [his] confidences and secrets," as mandated by Canons 4 and 7, when their lawyers elect to practice in the same suite of offices.
Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.