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   March 2002


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How To Protect Client Confidences in a Shared Office Suite

By Wells Anderson & Joseph M. Hartley

Difficult confidentiality issues arise from the very convenience of the shared office. The key to avoiding breaches of confidentiality is to assume that every spoken word might be overheard and all written information might be seen.

THE INCREASING EXPENSE OF REAL ESTATE makes it difficult to have the stand-alone, well-appointed law office most lawyers would like. Many firms have learned that by combining several smaller firms in a single location, the high fixed costs of rent, library materials, photocopying and faxing can be spread over a larger group of lawyers and made more affordable for all.

While the most common version of this cost-sharing arrangement is found in the shared suite, even large firms frequently sublet excess space to other lawyers and permit subtenants to use physical facilities and equipment. In addition to the advantages of spreading costs, sharing space with other lawyers provides a built-in source of referrals. Economically, it’s a good deal for all involved.

Any shared-space arrangement, however, raises serious questions about maintaining client confidences. If you want to avoid the embarrassment of an ethics complaint or malpractice claim, or of explaining to a client how you inadvertently waived the attorney-client privilege in your shared-space arrangement, follow the procedures discussed here.

First Rule: No Talking in the Halls

Many cautions involved in protecting client confidences in a shared space are so obvious that lawyers forget about them. For example, don’t discuss confidential matters in the reception area or hallway. Keep your door closed if you’re discussing confidential matters in person or on the phone, even if you have an open door policy. Don’t discuss confidential matters on phones in insecure areas, such as the library or open conference rooms.

Receiving Telephone Messages

Other potential problems can rear their heads when your clients want to leave substantive phone messages for you.

Messages via the receptionist. Many shared-space arrangements include a receptionist who fields incoming calls for all the tenants. If a client leaves a substantive message with the receptionist, any attorney-client privilege is arguably waived. True, you could argue that the receptionist was reasonably necessary to get the message to you. But that’s a difficult argument to make, complicated by agency questions. For example, to whom does the receptionist owe a duty of loyalty? And what if a confidential communication is written down on a message pad for passersby to see? Instruct the receptionist to take no substantive messages from clients or, alternatively, to offer to transfer them to your voice mail. Similarly, advise your clients not to attempt to leave confidential messages with the receptionist.

Messages via other secretaries. Occasionally another secretary in the suite might take your client’s call if neither you nor your secretary is available. Again, instruct clients never to leave a confidential message other than in your voice mail or with someone the client knows to be your employee.

Messages via your secretary. Under most state laws, a message to you through your secretary is just as protected as if it were made to you directly. The problems arise not in the fact of communication via your secretary, but in the manner in which the message is taken. For example, a staff member speaking in a normal tone of voice can probably be heard by anyone walking by. If confidential information is taken over the phone, you must make it a policy that your secretary repeat the information only sotto voce.

Answering machines. Answering machines are fundamentally insecure. Anyone can replay the message and hear the caller’s voice broadcast over the machine’s speaker. Invest in voice mail service or equipment with an individual mailbox and password, so no one but you can access the messages.

Receiving Written Communications

Many confidential lawyer-client communications are in writing. Written communications present a different set of problems in the shared space.

Mail. Some arrangements have one person open and sort the mail for everyone in the shared office. This is an unbelievably bad idea. Client mail must be delivered unopened to you—without exceptions. If a receptionist opens the mail, you have just blown the attorney-client privilege for any privileged information. This also applies to hand-delivered documents from clients.

Faxes. Most shared-space arrangements provide a shared fax machine, on a dedicated phone line, that is usually placed in a common area. A shared fax machine does not protect the confidentiality of incoming client documents. If you are in litigation and your opposition realizes that you have a shared machine, you may be in for an unpleasant and expensive fight over the confidentiality of your client’s faxes to you.

Why risk it? Today a plain-paper fax machine with enough bells and whistles to satisfy the most ardent gadget lover costs less than $300. Fax/modem cards have also made it possible to send and receive securely from your computer. The rationale for sharing a fax machine is no longer economically compelling. (See the sidebar on page 41 for more on fax options.)

In terms of outgoing faxes, if you or your staff stands by the machine while sending a document, there should be no confidentiality problems. You do, of course, need rules against leaving faxes unattended while they are being sent over a public fax machine.

E-mail. Ever since the Internet became popular, lawyers have agonized about the risks of communicating via e-mail. We leave the general issue of e-mail confidentiality to other articles and address only the potential trouble with e-mail in shared office situations.

Confidential e-mails usually are saved in both paper and electronic form. Once printed, they need to be safeguarded in the same ways as other paper communications. But as long as your e-mail remains on your own computer and is not accessible from your suitemates’ computers, confidentiality is not a problem—if you secure your computers appropriately.

Protecting Documents On-Site

The thorniest problem in the shared office space is maintaining the confidentiality of the information once it arrives. In nearly every shared-space arrangement that we have seen, lawyers overlook serious problems in how they store their confidential documents.

File storage. In the stand-alone firm, file storage does not present a problem of preserving confidences because files are usually stored in an area away from the public, where only members of the firm are permitted access. Many firms in shared office spaces opt for the convenience of centralized file storage that is shared with other suite members. Your files may be on separate shelves, but anyone in the suite has access to the file room and therefore access to your files. You, of course, have access to the other firms’ files as well.

To preserve confidentiality, you must ensure that no confidential documents are publicly available to members of the office suite. You have two choices.

If you want the convenience and economy of using a central storage area, make sure that you store nothing confidential there. For transactional lawyers, this probably means that most files have to be kept elsewhere. For litigators, it means that you can keep all documents except privileged documents in the storage area. As a practical matter, you would keep correspondence and memo files elsewhere, and keep pleadings, discovery, nonprivileged documents and the like in the shared file area. It may be more inconvenient, but you’ll avoid no end of troubles.

The other option is having secure storage areas for all your files. Before you write this off as unworkable overkill, consider that files need not be locked up during the day if some member of the firm is close by to control access. This approach can be as simple as putting a locked file cabinet at each secretary’s workstation, or as complex as having file storage in the lawyer’s office and locking it each night. Either solution means you need more square footage to accommodate your files. In a firm of several lawyers, it also means that it may be harder for someone to find a given file, since it could be stored in several locations.

Whichever solution you follow, you must implement proper security to ensure that files are protected. The files should be locked up at the end of the day or when the responsible staff member goes to lunch or will be out of the office for an extended time.

Work in progress. In almost every firm that shares space with other lawyers, the secretarial cubicle is effectively a public area. Any tenant of the suite can gain access to the cubicle as easily as walking into a conference room or library. The fact that a secretarial cubicle is functionally a public space dictates the precautions that must be taken to protect work in progress.

Work flow. If the secretary is working with a confidential document, that document must remain in sight of the secretary (and out of sight of any passersby) at all times. If the secretary leaves the area, the confidential document should be placed in a drawer or locked away.

Unread mail. Many lawyers like to have their in-box on their secretary’s desk. In a shared suite, the secretary’s desk sits in the public area. Therefore, it is a lousy place for an in-box. The in-box is better located in the lawyer’s office.

Unedited work. Many secretaries deliver work product to the lawyer’s in-box. For the same reasons as just discussed, the box is better placed in the lawyer’s office. Alternatively, a drawer or other closed container at the secretary’s desk could serve the purpose, though this arrangement raises the "out of sight, out of mind" problem of misplaced documents.

Filing. In a shared office, it is critical that the filing be done immediately and the files returned to a secure location. The documents should not be left in a filing box on the secretary’s desk. If filing cannot be finished that day, it should be locked away when the secretary leaves for the day and then finished the next morning.

Photocopying. A shared-space arrangement offers savings through the use of a common photocopier. The firm must have a rule that whoever makes photocopies never leave the photocopy machine without removing the original and all copies.

Shared printers. Since the price of a good, high-speed network printer has plummeted, sharing one with another firm in the suite does not save much money. The best approach is for each firm to have its own printers within easy reach and under the watchful eyes of its own staff.

Chron files. A chron file contains copies of everything the lawyer has sent out, including confidential communications. Where is the chron file kept? In the secretary’s unlocked desk? Not if you value confidentiality. Lock it up with the other confidential information. Document management software offers an alternative to the chron file, providing the capability of listing the lawyer’s documents in date order with originals just a double-click away. Such software eliminates the busywork of maintaining an additional paper file of all work product.

Phone messages and message pads. Message slips should be guarded just like any other confidential communication. Message pads should be kept in a closed drawer after hours. The message pad can be replaced with the electronic messaging available on most networked computers, provided that the network is secured. Case and matter management software now incorporate internal phone message features with pop-up windows to notify lawyers about important messages. In addition, these features automatically store phone messages, cross-indexing them by matter and lawyer.

Document drafts. One last item is the use—or rather, disposal—of drafts of confidential information. Some lawyers will keep the draft in the file forever. If you don’t, you and your secretary need to take appropriate precautions to make sure the draft is unreadable by anyone who goes through your trash. Shredders are getting much cheaper and are a sensible investment.

Note that some of the procedures recommended here do not distinguish between confidential information and information that is public. That’s because there’s entirely too much going on in a law office to permit two separate policies based on a staff member’s determination that a particular document might be confidential. Such policy would be entirely too cumbersome to enforce. It would also invite error by placing the responsibility for determining confidentiality on someone who is not a lawyer. The simpler rule is to treat everything as if it is confidential and avoid the problem in the first place. Besides, do you really want an office procedures manual that reads like the Internal Revenue Code?

Sharing Wisely

There is nothing inherently wrong with sharing office space. It permits you to buy more physical plant and services per dollar than you could on your own, particularly if your firm has fewer than five members.

What must remain in the forefront of your thoughts, however, is the fact that you don’t control all the space in which you work. You may trust your suitemates, but can you trust all of them and their staff all of the time? Even if you can, your savvy opponents could take advantage of your security oversights and compel disclosure of work product and information that you thought was privileged. Share your suite, but not your clients’ confidences.

Wells Anderson (wa@wellslegaltech.com), a Minnesota attorney, is a legal technologist working with law firms on implementing software.

Joe Hartley (jmh@hartley.com) is a trial lawyer in Santa Monica, CA, where he advises lawyers and tries legal malpractice cases.

[SIDEBAR, page 41]

Facsimile Options

You need fax capabilities and you need confidentiality. You do not get the latter with a shared fax machine in a common area. Here are your options.

FAX CARD

Fax/data modems are included in most new computers. As long as the computer with the fax card is using a line available only to your firm, and the computer is physically protected or otherwise made inaccessible by software protection, confidentiality is protected.

On the downside, using fax software is not as intuitive as using a fax machine. Some of the difficulties include negotiating menus for handling multiple attachments, adding scanned versions of paper documents to a fax, verifying that a fax has been sent successfully and noticing when an incoming fax has arrived. You and your staff can learn all these functions, but it is still easier to make errors with fax software than with regular fax machines.

Fax cards do offer advantages. Faxing straight from a personal computer eliminates the manual paper handling involved in feeding a regular fax. Sending to a group of people is easy rather than tedious. The quality of the document seen by the recipient will be better, since the fax software creates a more precise image of a word processing document. But some fax software may subtly alter margin sizes and even cause problems with page breaks.

If you are networked, you can receive and keep all faxes received through a fax card on a single machine and integrate faxes into your case management software. In addition, your faxes will be backed up onto the same backup media that secure the rest of your computer records and documents.

Before choosing a computer solution to sending and receiving faxes, be sure you are aware of the significant advantages and complications of the specific computer equipment and fax software you are considering.

PERSONAL FAX MACHINE

You can also have your own fax machine on a dedicated line without great expense. But having a fax on a staff member’s desk in open view is not much of an improvement on the common fax. The client’s confidential communications are still open to everyone who passes by. Another option is to place the machine in one of the lawyer’s offices, with a firm rule that the door be closed and locked while the lawyer is away. Many lawyers find the fax loud and annoying, although the ringer can be turned off.

FAX BY E-MAIL

Some companies—eFax.com, J2.com and price-performance leader MaxEmail.com come to mind immediately—offer unique fax numbers for your private use. They forward faxes to your e-mail box as attachments to e-mail messages. You view the faxes through a free viewer. As long as your computer and e-mail service are secure, these services can offer flexible alternatives to the traditional fax machine. They also permit you to get your faxes if you travel—an added convenience.

Wells Anderson and Joe Hartley