Ethics Opinion

Opinion 76-11

FLORIDA BAR ETHICS OPINION
OPINION 76-11
December 19, 1977
Advisory ethics opinions are not binding.
It is improper for attorneys who share office space and secretarial services to hold themselves out
as a partnership when they are not partners. An attorney whose practice includes criminal
defense work should not share space with part-time assistant public defenders if the Public
Defender’s Office refers nonindigents to individual private attorneys.
CPR:
Opinions:
Statutes:
Misc.:

EC 2-13, DR 2-102(C), DR 2-103(C) and (D); Canon 9
70-14, 72-38, 75-23
27.51(3), Florida Statutes
Attorney Gen. Opinions 069-108, 072-208

Chairman Lehan stated the opinion of the committee:
Three lawyers, A, B, and C, share office space and secretarial help. They use
a letterhead reading “A, B, & C, Attorneys At Law.” The names of the attorneys
are listed on the left side of the letterhead; on the right is one office address and
one telephone number. They maintain a common bank account for office and
secretarial expenses, but also maintain separate personal accounts into which they
apparently deposit their individual fees. While they refer to themselves as a
“firm,” they also state that theirs is “an association in name but not in substance.”
A and B are part-time assistant public defenders. C’s practice includes a
limited criminal defense practice, mainly appointive.
They refer to §27.51(3), Florida Statutes, which provides:
Assistant public defenders . . . shall not otherwise engage in the practice of
criminal law.
They ask:
1. Whether A and B are in violation of that statute;
2. Whether it is improper for C to practice criminal law under the existing
arrangement; and
3. If the answers to 1 and 2 are yes, the length of time they have within
which to modify their professional relationship in order to conform to that statute.

As phrased, the first question is a question of law not within the province of this
Committee. 1 But, because the attorneys’ present arrangement does involve an ethical violation,
we respond to the inquiry as involving questions of ethics.
The attorneys should not continue their present arrangement. EC 2-13 provides that a
lawyer shall not hold himself out as having a partnership with one or more lawyers unless they
are in fact partners. A, B and C are holding themselves out as partners when they are not. They
are in violation of DR 2-102(C).
They should use separate letterhead stationery and otherwise comply with the
requirements of Opinion 70-14. For purposes of this opinion, we will hereinafter assume that
they have done so.
We arrive then at the question A, B and C raise — the propriety of their sharing office
space and overhead expense when A and B are assistant public defenders and C engages in the
private practice of criminal law.
Two prior opinions of the Committee involve F.S. §27.51(3). Opinion 72-38 states that if
one member of a professional association is an assistant public defender, no other member of the
association may handle criminal cases. Opinion 75-23 states that there is no impropriety in one
attorney who is a member of a professional association accepting a federal court appointment to
defend a criminal case where another member of that professional association is a part-time
assistant public defender.
Opinion 75-23 suggests that §27.51(3) was intended to prevent a “feeder” operation. See
DR 2-103(C), (D). An example could be a part-time assistant public defender privately
representing in a criminal case a person who had come to the Public Defender’s office but had
been disqualified for financial reasons. We also have to consider Canon 9, dealing with
appearance of impropriety even when there is none.
The facts represented to us in this inquiry do not indicate whether A and B, the part-time
assistant public defenders, are in a position to “feed” any clients to C, the private practitioner.
We are informed that some Public Defenders’ offices refer to the Lawyer’s Referral Service
anyone who seeks a defense at public expense but is disqualified for financial reasons. Those
offices prohibit anyone associated with the offices from recommending any attorneys.
If A and B, in fact, are not in a position to refer or direct or influence the direction of
criminal defense matters to C, a majority of the Committee, subject to the caveat below, is of the
1

We note that Attorney General’s Opinion 069-108, interpreting §27.51(3), says it is not
proper for a part-time assistant public defender to be in partnership with an attorney who engages
in the private practice of criminal law.
Attorney General’s Opinion 072-208 says it is not a violation of §27.51(3) for an
assistant public defender to share office space and overhead expense with another attorney with
whom he has no professional relationship although the other attorney engages in the private
practice of criminal law.

opinion that once A, B and C comply with the requirements of Opinion 70-14, A and B may
properly continue as part-time assistant public defenders and at the same time share office space
and overhead expenses with C.
If A and B are in a position to refer or direct or influence the direction of criminal defense
matters to attorneys in private practice, the Committee majority is of the opinion that C should
not continue to practice criminal law and at the same time share office space and overhead
expenses with A and B.
We turn now to Canon 9. The facts of the inquiry do not indicate whether the Public
Defender’s office which employs A and B ever does refer clients to attorneys who privately
practice criminal law, even without A and B personally being in a position to direct, control or
influence such referrals. Compliance with Opinion 70-14 by the inquiring attorneys will avoid
the appearance of the close relationship which is inherent in a partnership and which would be
more readily susceptible of creating an appearance of impropriety from one partner accepting
employment which another partner, for any ethical reason, must decline. Nonetheless, although
there are, of course, many different variations of office sharing arrangements, lawyers sharing
office space, employees, and facilities do thereby pool their resources for their mutual benefit,
and presumably their resources include legal fees they earn.
Accordingly, the Committee majority feels that the sharing of office space by part-time
assistant public defenders with other lawyers engaged in the private practice of criminal law,
even if structured so as to avoid the appearance of a partnership pursuant to Opinion 70-14,
nonetheless, through the existence or appearance of a close financial or professional relationship
to the mutual advantage of the lawyers, could, under given circumstances, be at least susceptible
of involving an appearance of impropriety of a type related to the foregoing purpose of F.S.
27.51(3) and the foregoing ethical requirements as to indirect solicitation. Therefore, if there are
any such referrals from that Public Defender’s Office to attorneys who privately practice
criminal law, whether or not A and B are at all involved with those referrals, we feel the office
sharing arrangement would be improper.
A minority of the Committee feels that the sharing of office space creates the appearance
of a close professional relationship such that those sharing space should be governed by all of the
same principles concerning acceptance of employment under all circumstances as are partners
and associates of a firm. The minority, accordingly, is of the view that a lawyer who shares
office space with another lawyer who is disqualified from representing a client is likewise
disqualified from representing that client and that, therefore, either A and B must resign or C
must terminate his criminal practice.