The Florida Bar

Ethics Opinion

Opinion 76-11

December 19, 1977

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: EC 2-13, DR 2-102(C), DR 2-103(C) and (D); Canon 9
Opinions: 70-14, 72-38, 75-23
Statutes: 27.51(3), Florida Statutes
Misc.: 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. 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 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.

[Revised: 08-24-2011]