Can Lawyers Moonlight?

The job market is hot, your student loan balance is, well, eek, and you’ve been asked to do some legal work on the side—maybe it’s document review for a contract firm, or overflow for a solo practitioner friend.

Can you ethically do this?

Tread carefully, if at all.

First, check with your employer. Your firm or agency may have specific rules governing side work—and this may extend to non-lawyer employment such as teaching as an adjunct at a law school, or even non-law-adjacent service industry work.

What, you don’t want to check with your employer because you’re afraid they’ll say no? That’s a red flag. If you represent clients or perform legal work on the side, for your personal benefit, while you are employed by a law firm that expects legal work done by you to be billed for the benefit of the firm, that could constitute a breach of your fiduciary duty to the firm (see, e.g., In re Disciplinary Proceedings Against Shea, 190 Wis. 2d 560, 527 N.W.2d 314 (1995), and as enforced by SCR 20:8.4(f) and a violation of SCR 20:8.4(c) (prohibiting dishonesty), among other possible Rules. (First link is to Wisconsin, second link is to the ABA Model Rule.)

If your employer does give you the green light, there probably isn’t much else you need to do for non-law-work. Just be careful about following work rules—i.e. if your firm does not allow you to use its computers and Westlaw subscription for outside work, don’t use its computers and Westlaw subscription for outside work. Violations of work rules that are not independent violations of ethical rules may still technically fall under SCR 20:8.4(c) if the conduct involves dishonesty, and at the very least could get you disciplined at or fired from your main job.

If you are performing legal work, you do need to be careful that any side work is covered by malpractice insurance (you may need your own policy), and you need to be particularly mindful of conflicts of interests now that you have two firms (or a firm and your de facto solo practice) to worry about.

And, whatever you do, don’t do this. A lawyer in Texas named Weldon Ralph Petty took a job as a part-time prosecutor. That’s fine. Problem is, he also took a side job as a judicial clerk—to a judge hearing the cases he prosecuted. One particularly egregious case involved a murder defendant sentenced to death. The defendant filed multiple habeas petitions, most of which were denied or dismissed, until the most recent submission which brought up the moonlighting prosecutor. The criminal court was not amused and vacated the conviction.

The judge involved in the conviction has since passed away, and Petty was permitted to resign his law license rather than face discipline.