MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2002-24
Office-sharing with accredited INS representative who is not an attorney
Your inquiry raises the issue of the ethical propriety of an office-sharing arrangement which you describe as follows. The physical space would consist of two offices, one of which you would use for the practice of law. The offices would have a single entrance and share a waiting area and conference room. You would like to make the other office available, at no expense, to a recently retired non-lawyer member of a religious order who would provide various consulting services, at no charge, to members of the community. One such area of assistance would involve immigration, a field in which you describe the non-lawyer as having been "recognized by the Immigration and Naturalization Service as an accredited representative, an accreditation which the Service awards to non-lawyers who have received the required training." Finally, you state that you do not have any support staff, which the Committee understands to mean that there is no third person (whether a law clerk, secretary, bookkeeper, or the like) working in the office.
In addition to the propriety of the office sharing arrangement described above, you raise a concern as to whether there is an issue involving the unauthorized practice of law under Rule 5.5 of the Rules of Professional Conduct. The only activity of the non-lawyer which arguably would trigger any concern about the unauthorized practice of law would be that person's activities involving immigration and naturalization advice. This Committee does not opine on whether a particular activity constitutes the unauthorized practice of law because that is a legal issue, which is beyond the scope of this Committee's responsibilities. Accordingly, we can give you no guidance in this regard.
Assuming arguendo that the non-lawyer's activities do not constitute the unauthorized practice of law, this Committee does not believe that the described office-sharing arrangement would violate any ethical rules provided that certain steps were taken or observed. First, Rule 1.6 obligates an attorney to keep confidential all information relating to the representation of a client. Accordingly, your communications with your clients must be kept confidential from the non-lawyer in terms of the non-lawyer not participating in your communications with your client and not having access to your legal files. Second, Rule 7.5(d) provides that lawyers may not state or imply they practice in a partnership or other organization unless that is the fact. Your inquiry suggests certain ways in which you and the non-lawyer intend to make clear that you and the non-lawyer have no relationship. This Committee does not usually opine on the sufficiency of specific suggested solutions to potential ethical violations, but the Committee notes that your suggestions reflect your sensitivity to the need to comply with Rule 7.5(d). See generally, Ethics Docket Nos. 91-44 and 89-45 for prior opinions concerning office sharing arrangements.
Finally, the Committee cautions you about Rule 7.2(c), which would prohibit you from giving anything of value to the non-lawyer for her recommending your services to her clients. Your inquiry in no way suggests such a referral relationship, but the Committee wants you to be aware of the implications of any referrals. Even though the non-lawyer will not be charging a fee to her clients, there could be a violation of Rule 7.2(c) if she were to refer these clients to you for legal services for which you would be compensated; in this situation, your not charging rent to the non-lawyer could be construed as giving something of value (namely free rent) to the non-lawyer in consideration of her referrals.
We trust that the foregoing is responsive to your inquiry, and we thank you for taking the time to seek an opinion of the Committee.